More on Right to Rent – and Yet Another s8 Notice

You will remember that the Government decided that illegal immigrants would be deterred from coming to Britiain (or more specifically England) if they weren’t allowed to rent a place to live, or take lodgings, or indeed to stay in anybody else’s rented flat or house. They set up the Right to Rent provisions, which originally just covered the Midlands – see my piece here – and then extended them to the whole of England (but not Wales, Scotland or Northern Ireland) – see here.

The original penalty on landlords, and their agents, who didn’t carry out the necessary checks was a civil penalty of up to £3,000 per immigrant. However, somebody thought that this wasn’t severe enough, and as from 1st December 2016 landlords who knowingly let to people who don’t have a right to let can be prosecuted, along with their agents, and fined or imprisoned for up to 5 years. So it is vitally important to not only carry out the checks, but be able to prove that you have done so.

However, there is another way out of a criminal conviction. If the landlord takes steps to evict the offending tenant within a reasonable time – defined in the statutory guidelines as 3 months  from discovering that they had no right to rent – then no offence is comitted.

The landlord can of course take the normal steps to evict the tenant, such as serving a s21 notice, but he (or she) has been given two new weapons by the Immigration Act 2016:

  • Ground 7B  – inserted into the Housing Act 1996. This allows the landlord to end a tenancy, even during a fixed term, by serving an appropriate s8 notice, waiting 14 days and then bringing possession proceedings in the County Court in the normal way. If not all the tenants are prohibited from renting the Judge can either end the whole tenancy, or he can alter the tenancy so that it is transferred to the legal occupants only, provided the illegal occupants leave. It’s complicated to explain but here is the provision in the Act. There is an equivalent provision for the (very) few remaining Rent Act tenancies.
  • A 28 Day Notice – This is most unusual. If the Home Office send a formal notice to the landlord telling them that their tenant or all of their joint tenants in one property are renting illegally then the landlord can serve a prescribed notice unded s33D(3) on the tenants, giving them 28 days’ notice to end their tenancy. After the 28 days are up the tenancy comes to an end, the occupants lose their rights not to be evicted without an order of the court, and the landlord can either exclude them peacefully, or get them removed by a High Court Enforcement Officer, because the notice can be enforced “as if it were an order of the High Court” – see here.

We shall see how this all works, but I don’t think the courts are going to be very happy with the way in which the Minister can serve a notice, and the landlord can get it enforced as if it were an oreder of the High Court, all without involving the courts at all.

New s8 Notice

Because there is a new ground for possession under s8 Housing Act, there is a new prescribed form of s8 Notice, whoch must be used in all cases from 1st December 2016 onwards, which refers to s41 of the Immigration Act 2016 in the heading, and to ground 7B a few times in the text. It must be used in ALL CASES even if the claim is based on non-payment of rent or whatever, or it is invalid. So if you are a landlord or a tenant, or advise either of them, do check the notices that are used from now onwards, or the court won’t make a possession order. The new form of notice is here.

As usual these matters are covered in more detail elsewhere, and probably the easiest to follow is on the Landlord Law Blog. But at least you know there’s a problem here.

 

Advertisements

Can I Come In? – Enforcing Suspended Possession Orders

Now some of you may remember that in a previous life (when I really was Coventry Man) I worked for a firm who acted for some major social housing providers. They, unlike private landlords, usually let properties on assured tenancies (rather than assured shorthold tenancies) and played a much longer game. If a tenant was in arrears then they were quite prepared to let them pay off the arrears by instalments and sometimes they encouraged this by getting possession orders that were suspended on payment of say

“the current rent as it falls due plus the arrears of £800 at the rate of £100 a month, commencing on 1st November.

Now from time to time, indeed surprisingly often, the tenants would fall down on the payments and we would issue a warrant for possession and the tenant would be stirred up by a visit from the merry County Court bailiff who would give them an appointment for eviction in 4 weeks, and the form to apply to have the warrant suspended, so they could rush back to the court and explain to the cynical DJ why they had failed to keep the promises that they had made only a couple of months ago.

This might happen several times before either they got their priorities in order, or the DJ lost his remaining patience and the eviction went ahead.

Now it always surprised me that we could get the warrant issued just on our say-so. We signed the Request and cerified that they were in arrears and that was that. Indeed, if there were more complicated terms, such as the removal of a noisy dog, or the clearing of rubbish from the garden, we still just had to certify that they were in breach. No evidence was needed. Naturally our clients were fair about things, and my colleagues were decent honest and truthful, but I couldn’t help think that not everybody was like that, and that the courts were being very trusting, especially when more and more litigants were doing without lawyers and acting for themselves.

Anyway, things have changed now, and when the bits of the County Court Rules that governed enforcing judgments and warrants (rr25-26) were taken into the CPR in April 2014 (along with RSC 45-47) the powers that be took the opportunity of tigntening things up. I hadn’t noticed because I have moved on and don’t act for social housing providers any more, but it would seem that before you can apply for a warrant for possession after a suspended order you have to get permission by making an application supported with evidence.

The rules are in CPR 83.2 and spell things out pretty clearly:

(1)

This rule applies to—

(d)

warrants of possession.

(2)

A writ or warrant to which this rule applies is referred to in this rule as a “relevant writ or warrant”.

(3)

A relevant writ or warrant must not be issued without the permission of the court where—

(e)

under the judgment or order, any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled; or

(4)

An application for permission may be made in accordance with Part 23 and must—

(a)

identify the judgment or order to which the application relates;

(b)

if the judgment or order is for the payment of money, state the amount originally due and, if different, the amount due at the date the application notice is filed;

(e)

where the case falls within paragraph (3)(c) or (d), state that a demand to satisfy the judgment or order was made on the person liable to satisfy it and that that person has refused or failed to do so;

(f)

give such other information as is necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment or order, and that the person against whom it is sought to issue execution is liable to execution on it.

(5)

An application for permission may be made without notice being served on any other party unless the court directs otherwise.

Now the problem is that there is no reference to any of this on the form of application for a warrant – N325 – which is the form needed under r83.26. Indeed there are several references in the order that make it look as if nothing has changed:

83.26 (1)

A judgment or order for the recovery of land will be enforceable by warrant of possession.

(2)

An application for a warrant of possession—

(a)

may be made without notice; and

(b)

must be made to—

(i)

the County Court hearing centre where the judgment or order which it is sought to enforce was made; or

(ii)

the County Court hearing centre to which the proceedings have since been transferred.

(4)

Without prejudice to paragraph (7), the person applying for a warrant of possession must file a certificate that the land which is subject of the judgment or order has not been vacated.

(5)

When applying for a warrant of possession of a dwelling-house subject to a mortgage, the claimant must certify that notice has been given in accordance with the Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations 2010.

(6)

Where a warrant of possession is issued, the creditor will be entitled, by the same or a separate warrant, to execution against the debtor’s goods for any money payable under the judgment or order which is to be enforced by the warrant of possession.

(7)

In a case to which paragraph (6) applies or where an order for possession has been suspended on terms as to payment of a sum of money by instalments, the creditor must in the request certify—

(a)

the amount of money remaining due under the judgment or order; and

(b)

that the whole or part of any instalment due remains unpaid.

You always had to certfy this sort of thing. The difference is that you shouldn’t apply for the warrant at all before you get permission under r83.2(3). Easily overlooked.

Well, what happens if you get it wrong, and haven’t got permission and the court doesn’t notice? Because the issue of a warrant is dealt with by the court office, not the DJ, and court offices are busy understaffed places. Is your warrant invalid, and can the tenant get it set aside? Or can you rely on good old r3.10 that allows the court to fix things when there has been a mess-up by somebody:

3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction –

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

There has been some interest in this among the frantically overworked heroes who represent tenants expecting immenent eviction, as some courts and DDJs had one idea and some had another, and there has now been a decision by the CA in Cardiff CC v Lee [2016] EWCA Civ 1034 .

The CA decided, after some navel-gazing,  that if the failure to apply for permission was “an error of procedure” then an application under r3.10 could put things right. In the particular case the tenant had applied to set aside the warrant anyway without success so the facts had been examined and nothing would be gained by going into things again, so the court below had been right to allow the warrant to go ahead.

Had the failure to apply been intentional however they might have taken a different view. And given there has now been a case in the CA on this point, which is being reported and commented on in interested circles (like here), it is going to be much harder for any landlords who merrily sign the N325 without getting permission to enforce first.

Applications can be made without notice and dealt with on the papers, but it will mean another delay of several weeks in most courts before the order can be enforced in any event.

As usual this is covered in the Nearly Legal blog in a lot more detail that I do here. However, you all know this now, so there’s now one less thing to trip over.

No Human Rights Here – McDonald v McDonald in the Supreme Court

McDonald v McDonald [2016] UKSC 28

The European Convention on Human Rights, and the Human Rights Act 1998 are basically intended to regulate the relationship between individuals and the State, not between individuals themselves, which is generally left to domestic law. The HRA provides this expressly:

s 6.1 It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

So what happens when one individual, or private organisation, while exercising their own rights, normally as to the ownership of property, infringes the Human Rights of another individual?

In the housing field the easiest way for this to happen is when a landlord seeks possession of a house or flat belonging to him, but occupied by somebody as their home, and so the occupier’s rights would normally be protected under Article 8 of the Convention:

Art 8.1 Everyone has the right to respect for his private and fimily life, his home and his correspondence.

Art 8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This clashes with the landlord’s rights under Article 1 of the First Protocol to the Convention:

A1P1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

If the occupant is evicted they lose their home. If not the landlord is deprived of his property. Which takes priority? It is easy enough if you are asking the judge to exercise his discretion and make an order, because he can take all these factors into consideration. But how do you decide if the landlord is seeking possession under a mandatory ground, such as ground 8  or s21 HA, when the judge has no discretion in the matter?

Well, the matter was decided in respect of property belonging to public bodies long ago, in the well known cases of Manchester CC v Pinnock (2010), and Hounslow v Powell etc (2011) I wrote about them at the time (here and here) and the SC decided that in an appropriate (ie very strong) case the court should decide whether the order sought was “proportionate” in all the cirdumstances. In practice the courts rarely exercise this discretion, but it is there and cannot be ignored, with public bodies generally adapting ther procedure to take it into account. And in this context “public bodies” includes most social landlords, following the CA case of Weaver v London & Quadrant (2009).

This was all based on the wording “a public authority” and so at first glance couldn’t affect relationships between private individuals, or private bodies. However, these are all cases where there is a mandatory ground of possession, with no discretion to the judge, and a strong feeling of unfairness, or lack of proportionateness, so the occupants’ advocates were inventive, and argued that although Joseph Soap, the landlord, wasn’t a public body, the local county court was, and so the court was bound by the HRA even if the landlord wasn’t. The court would therefore have to consider and deal with the human rights points, and if that affected the landlord’s rights then this was covered by the proviso in A1P1. If the argument succeeded than it would in fact apply to all areas of law, and not just housing claims, so it was a matter of great importance.

McDonald v McDonald

This was an undoubtedly hard case. The defendant, an adult with psychiatric and behavioural problems, was living in a house bought for her by her parents with the aid of a short-term interest-only mortgage from CHL. She had an AST of the property, paid from her benefits. Unfortunately her parents’ financial circumstances deteriorated and they could no longer pay the morgage payments in full. CHL appointed receivers under the LPA who exercised their power to serve a s21 notice on the defendant, and brought possession proceedings.

At Oxford County Court the defendant’s representatives argued that the court ought to consider the proportionality of making an order for possession, given that there was medical evidence that having to move would have a severe adverse affect upon her. HHJ Corrie held that he had no power to do this as the claimants were not a public body. However, if he did have the power the Judge would have exercised it and dismissed the possession claim, there being no other way to protect the defendant’s interests.

The CA dismissed the appeal and the case got to the SC and judgment was given on 15.6.16. They identified three questions:

  • should a court consider proportionality in a claim to evict a residential occupier by a private sector owner;
  • if so, is can s21 HA be read in a Convention compliant way; and
  • if so, would the Judge have been entitled to dismiss the claim as he said he would?

Proportionality

The defendant’s counsel argued strongly that the court was clearly a part of the state, and so was bound to consider proportionality in making any possession order, and if there was a private sector claimant would have to balance their A1P1 rights against the occupant’s Art 8 rights when coming to a decision.

The court said that things were not as simple as that. Parliament has regulated the position between private landlords and tenants for many years and although the tenant with an AST has restricted rights, they are significant and show where parliament has democratically decided to strike the balance between them. There are no circumstances where a judge should use Article 8 to make a different order from that determined by the contractual position, as regulated by the legislation. And as Lord Millett explained in Harrow LBC v Qazi (2004) the court:

 is merely the forum for the determination of the civil rights in dispute between the parties… once it concludes that the landord is entitled to an order for possession, there is nothing further to investigate. [paras 108-109]

Having looked at the cases from the ECHR the court decided that although there was some support for the view that Art 8 was engaged, there was none that said that a judge had to consider proprotionality when making a possession order, so the appeal was dismissed.

Can s21 be made compliant?

The court said that it is one thing to imply words into legislation which are consistent with the scheme of the legislation, but are needed to make it comply with the Convention. It is quite another to insert words that are wholly inconsistent this its scheme. That is not interpretation, but amendment, and is something for parliament and not for the courts to do. If the section was incompatible then there would have to be a declaration of incompatibilty. But in the circumstances this did not arise.

Should the Judge have dismissed the claim?

The judge could only postpone any order for possession bu up to six weeks, and then only if there was exceptional hardship. It was difficult to see how it would ever be proportionate to dismiss the posession claim altogether, and prevent the mortgagees getting repaid at all. The mortgage term expired only three weeks after the County Court judgment, and the only way to recover the loan was by selling the property with vacant possession. On the facts possession should have been postponed by six weeks at the most.

And this means?

The court has banged the argument that all law is subject to the Convention because all laws are enfirced by courts very firmly on the head. And also indicated that s21 and other mandatory possession grounds have been decided by parliament and that the courts must accept the balance between the parties that parliament has struck.

There may be a few small points on introductory tenancies still to be considered, but these are granted by public sector landlords, and this case, hard as it is to the parties concerned, really draws all this argument to a close, some 18 years after the Human Rights Act came into force.

Sighs of relief from private sector landlords. And at least the rest of us know where we are.

More details as ever with the Nearly Legal blog.

More Changes for s8 Notices

It seems to be traditional to change the form of the notices that a Landlord has to give an Assured, or Assured Shorthold, Tenant if they want to recover possession for any reason other than service of a s21 Notice every so often, usually at short notice, and with little publicity. The powers that be did so in April 2015 (see my piece) and are now doing so again, with effect from 6th April 2016.

This matters, because although the actual changes are trivial – correcting of some cross-references to the new form of notice needed for s21 Notices – the form is a prescribed form, and if you don’t use the right one then the notice is invalid, and you might have to start the possession claim again. And you will have to start again if you are using the most popular Ground 8 (2 months’ or 8 weeks’ arrears of rent) because the court isn’t allowed to dispense with service of a valid notice in that case.

The new form of notice is in the regulations here  along with some similar minor amendments to the notices for increasing rent etc. The layout is as awful as ever, and printed in ridiculaously small print – why can’t they produce these forms in a usable version (can’t really call it a form) rather than getting everybody to type the things out afresh? The people who produce the court forms have now made pretty good, amendable pdf versions, so perhaps they can pass on a few tips to their colleagues in housing.

Still, there it is. Don’t forget it if you advise landlords. Or indeed if you advise tenants either, as you may be able to give your client much longer to find somewhere else to live than you had expected.

 

Letting to Illegal Immigrants – the New Restrictions

In 2014 the government brought in restrictions on letting residential property to illegal immigrants, but only applied them to a pilot area, made up of Birmingham, Dudley, Sandwell , Wolverhampton and Walsall. I wrote about it at the time, but as the restrictions are now being rolled out across the whole of England (but not Wales, Scotland or Northern Ireland) with effect from 1st February 2016 I need to do so again. I’ve cut and pasted a lot from my earlier piece, so don’t be too surprised if it looks familiar. However, the government has taken the opportunity of tweaking things here and there, so there are some changes too.

The Law

Immigration Act 2014 sets thing out in ss 20-37. It defines:

  • persons disqualified by immigration status –  who are, not terribly surprisingly, people who have no right to remain in the UK; and
  • persons with limited right to rent – who are people with time-limited rights to be in the UK, plus people exercising EU rights to be in the UK, but are not EU citizens.

and make a landlord liable to a penalty if they allow them to occupy residential property, either as tenants, or licensees, or indeed lodgers.

There are a number of exceptions for the people

  • only adults count;
  • and UK, EU, EEA and Swiss nationals are exempt.

and for the lettings

  • only residential lettings – ie which the adult will occupy as their only or main residence (even if the premises are also used for other purposes.)
  • leases of 7 years or more don’t count;
  • nor does social housing, hostels, care homes, student accommodation and a variety of other things that are set out in Sch3,

However, lettings include leases, licences, sub-leases and licences and agreements for them  (s20(3)). And the prohibition can be broken by the tenant, or any other adult authorised to live there, or any adult not named in the tenancy agreement who actually lives there unless reasonable enquiries were made and they were not disclosed.

All this starts on 1st December 2014 for the Midlands, and 1st February 2016 elsewhere, and relates to lettings (etc) starting on or after then. Existing tenancies and renewals aren’t affected.

The Code of Practice

Immigration law is notoriously complex, and so the Government, rather than giving all landlords a 3 year training course, and free legal assistance afterwards, has prescribed a Code of Conduct  and some Guidance for Landlords which landlords are meant to follow. If they carry out the procedure in the Code they won’t have to pay the penalties. All landlords really need to have access to the Code. And as it gets changed from time to time you need to check the on-line version each time.

Some of the procedure is obvious. The landlord or agent should interview all the prospective occupants and see if they are intending to live there. If there is any doubt about the age of a child then documentary evidence should be seen and a copy kept. And all the adults should produce appropriate original documents which should be checked in their presence and a copy taken.

And for some people the documents are easy too – UK, EU or EEA or Swiss passport, or EU/EEA/Swiss identity card. They don’t even need to be current.

However, it rapidly gets a lot harder – do you know what a biometric immigration document issued by the Home Office looks like? Me neither. Fortunately the Home Office has produced a guide with some illustrations, although as the tenant can produce identity cards (current or expired) from any of the EU or EEA  countries or Switzerland it would have been helpful if they had shown a more comprehensive selection.

And once you get onto the “acceptable document combinations” or the “Documents where a time-limited statutory excuse is established” – there is a long list of things that most landlords have never heard of, and will have no idea if they are genuine or not.

Finally, if there is an application in train at the Home Office for permission to remain the landlord has to contact the Home Office online (or by phone) quoting the reference number supplied by the applicant.

For time-limited occupants the landlord has to follow their cases up to make sure they don’t overstay their leave. And the document combinations need to be repeated every 12 months.

If a landlord finds that an occupant is there illegally they should report them to the Home Office right away. Provided of course that they have already followed the Code to the letter, or they are just going to bring down hefty penalties on themselves. And then evict them (using the existing legal framework – s22(9) of the Act says that the tenancy isn’t void because of the immigration illegality), or they may have more penalties to pay.

What’s going to happen?

There is a serious risk that a lot of landlords are going to avoid anybody who looks even slightly foreign. So there is another Code of Practice on Avoiding Discrimination which says in effect that landlords have to document-check everybody, and keep copies for inspection, or they can be accused of racial discrimination. So the revised expectation is that they will avoid anybody who can’t produce a UK passport, or possibly an EU one. How do you know if the other documents are real?

This is wrong, and very unfair on a lot of people who are having a hard enough time living in a strange land but are on the right side of the immigration line. But a family of four may cost a landlord £12,000 in penalties, so why take the risk? Mind you the £3,000/head level only kicks in if the landlord has already had one breach, and the occupant isn’t just a lodger.

And the future?

More restrictions are set out in the forthcoming Immigration Bill 2015-16. This is working its way through Parliament at the moment so the wording isn’t yet been set in stone. This is the present version, but it may change. However the key points are:

  • Landlords (or agents) who let to tenants (etc) in breach of the restrictions, and know, or have reasonable cause to believe that this is the case will be guilty of an offence and can be sent to prison for up to 5 years.
  • The Home Secretary can serve a notice on a landlord informing them that the occupiers of their premises, or all of them, are disqualified as a result of immigration status from occupying premises under a residential tenancy agreement. The landlord can then serve at least 28 days written notice on the occupants and the tenancy thereby comes to an end. The section goes on to say, rather cryptically

The Notice is enforceable as if it were an order of the High Court.

Presumably this means they can send in the HCEOs, without having to bother the courts themselves at all. Such tenancies are excluded from the protection of the Protection from Eviction Act 1977.

  • There are provisions to insert implied terms into ASTs allowing them to be terminated if the tenants are disqualified as a result of immigration status from occupying premises under a residential tenancy agreement, and to give new mandatory grounds for possession for assured and secure tenancies.

Comment

This is controversial stuff. Although the government said that the pilot scheme doesn’t show there was any increase in the difficulty non-white applicants had over white applicants when seeking accommodation, this seems to have been a very small sample, and a short time-period, and other surveys produced different results. Rolling it out over the whole country, including London, is bound to make things a lot more difficult.

In the meantime, if you are a landlord, check the paperwork carefully, keep good copies, and if you are in any doubt it may be prudent to say no. And if you are a tenant make sure that your paperwork is spotless, or you are going to find things a lot harder.

The provisions in the Immigration Bill are very doubtful. The ability to serve a notice that is enforceable as if it were an order of the High Court is going back to Victorian times, and the ability of a Secretary of State to issue a notice to trigger this, bypassing the courts altogether, is a serious attack on the rule of law, which the courts will not necesarrily take lying down. Watch this space.

As ever, there are more detailed commentaries on the Nearly Legal blog (this is a link to several posts on this subject)  and on Tessa Sanderson’s Landlord Law blog, and elsewhere.

If it Sounds Too Good to be True – Enforcing Possession Orders

A constant complaint from landlords who are trying to recover possession of rented residential properties is that everything takes so long. Not only do you have to give the appropriate notice – often 2 months – to the tenants before you can issue possession proceedings, but once you issue them they don’t normally come up for hearing until about 6-8 weeks later. The judge, if he deals with it at the first hearing, may make an order for possession in 14-28 days, and then you have to apply for a warrant for possession, and eventually get a bailiff’s appointment for an eviction some time later. Where I practice the delay is about 3-4 weeks, but in London and Birmingham it is nearer 12 weeks. So a landlord may be waiting for 8 months from when he served the initial notice (or longer if there is any sort of problem) before he gets the property back. Throughout this time the tenant is unlikely to have paid any rent, and although there will be a money judgment, this is rarely worth anything, so it is a major issue.

Of course, advising a tenant, you can tell them that they have all this time to stay in the property, and there is very little the landlord can do about it. So there is free accommodation and/or plenty of time to find somewhere else to go.

The Problem

Now, this isn’t fair. The delays in getting the order have to be accepted, but 12 weeks for an eviction is ridiculous, and a farce. So landlords and their advisors have been trying to get round the problem, and some of them had thought that they had just discovered the silver bullet – or at any rate the gun that fires the silver bullet. This is the High Court Enforcement Officer (HCEO), a self-employed official who used to be called the Sheriff (not strictly true but close enough for now.) They enforce High Court Orders (as you might expect) and are much better at getting money out of people than the County Court Bailiffs are, who enforce CC orders, largely because they are paid by results.

This is recognised by claimants, and most CC money judgments for more than £600 are transferred to the HC for enforcement by the simple procedures (sign a request in form N293A) under CPR r40.14A and CPR r83.19 and then enforced by the HCEOs.

Those of you in the know will realise that you can use the same procedure of transfer for an order for possession against trespassers, and indeed the form N293A helpfully provides for this. But the applicant (or their solicitor) has to certify that:

I intend to enforce the judgment or order by execution against goods, and/or against trespassers in the High Court and require this Certificate for this purpose.

You can’t use this simple procedure for other sorts of enforcement, such as enforcing possession orders against tenants. You have to go through the formal procedure of an application under r23 to a District Judge for a transfer from the CC to the HC under s42 County Courts Act 1984. This allows any action (with a few minor exceptions) to be transferred, and there are some criteria for determining these transfers set out in CPR r30.3. Most of the criteria don’t apply once you have a judgment, and the application can probably be dealt with on a paper application without a hearing, but is still needs to be made. If dealt with on paper it will take a few weeks, depending on workload.

However, there is another hurdle before you can enforce your CC possession order, which has now become a HC possession order, with the HCEOs. You need to issue a Writ of Possession. And under CPR r83.13 (2):

Subject to paras 3, 5 & 6, a writ of possession to enforce a judgment or order for the giving of possession of any land will not be issued without the permission of the court.

None of the exceptions cover tenants, just trespassers  and mortgagors. And even more clearly para 8 says that notice has to be given to the tenants:

(8) Permission referred to in paragraph (2) will not be granted unless it is shown—

(a) that every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled; and

(b) if the operation of the judgment or order is suspended by section 16(2) of the Landlord and Tenant Act 1954, that the applicant has not received notice in writing from the tenant that the tenant desires that the provisions of section 16(2)(a) and (b) of that subsection shall have effect.

Now it would be just about possible to argue that the occupants only had to be given notice of the original possession proceedings, which they would have been in the normal course of events. However even this has been taken away by the decision of Rose J in Nicholas v SoS 24.8.15 (unreported but covered in a note from Arden Chambers and referred to in para 63 of Birmingham CC v Mondhlani (2015)). She stated quite categorically that the occupants must be given notice of the application for permission, and as she had not been the writ was set aside, even though it had already been executed. And this decision of a High Court judge is binding on all DJs and Masters, and circuit judges in the CC.

By the time that you have issued an application for a hearing, served it on the tenants, and then attended and (hopefully) won you could easily have taken 6-8 weeks, and lost all the time that you had been hoping to save. Together with the extra cost, which you won’t in practice get back from the tenant.

The Right Thing to Do

The only way out is political – get the law changed to allow for speedier enforcement of possession orders, if people think that is a good idea. There is a good practical argument in favour of change, and although the normal objection from tenants is that HCEOs don’t give notice of the evictions, which makes removing their belongings and getting rehoused particularly difficult, this requirement could easily be inserted into any legislation, or indeed into the orders giving permission to enforce (see the Mondhlani case above for an example) so at the end of the day an amendment certainly looks possible, if anybody will take up the cudgels.

The Wrong thing to Do

Ignore the caveats, sign the N293A form, and then enforce the order without getting permission from anybody, or at any rate without giving the tenants notice of your application. You save a lot of time and make a lot of money until you are caught.

Which they have been. Nicholas v SoS, mentioned above, showed the Ministry of Defence being remarkably inventive, and Birmingham CC v Mondhlani (2015) shows Birmingham City Council, who really ought to know better, again being caught red handed. And there must be many more.

Worse, it appears that some of the larger firms of HCEOs may have been encouraging this course of action. Nearly Legal, the housing law blog, has run two excellent posts on this recently (here and here) and it looks as if there may be further developments, in the form of actions for damages by aggrieved tenants, or even arguments about contempt of court.   There are certainly a lot of comments on the blogs, on Twitter and in the legal press. A recent addition is in the Landlord Law Blog.

I will say no more for now, except to comment that it is yet another example of the truth of the old saying:

If something sounds too good to be true, it probably is.

PS – another update from Nearly Legal on this saga here.

More Changes for Landlords and Tenants – s21 Notices

One of the problems with the law, and especially with housing law, is that as soon as you have worked out what the law is in one particular corner, and how you have to act in order to comply with it, and have drafted the forms and prepared the advice, somebody comes along and changes it, and you have to start again, or at least revise things.
Well, this has happened with notices under s21 Housing Act 1988 following the coming into force of further parts of the Deregulation Act 2015 and some new regulations.

Things as they were

As you probably know, s21 HA provides a way of a landlord of an Assured Shorthold Tenancy – the most common kind of tenancy in the private rental market – to bring the tenancy to an end, basically by giving 2 months’ written notice. Provided this expired after the end of any fixed term (and originally at the end of any periodic tenancy period) then the landlord could bring possession proceedings and the Court had to make a possession order. There was no form of notice, and the procedure could go through the accelerated process, which meant that if you had got the paperwork right there wasn’t even a hearing, as the order was made on a paper application. This made it the most common way of ending a tenancy, as there was no argument about reasons or anything like that, and many thought that this guaranteed ability of landlords to bring tenancies to an end when they wanted was the one of the key things that set off the increase in private lettings.

The Changes

When tenants’ deposits had to be protected in 2007 the landlord had to enter the deposits into one of the approved schemes and give the tenants notice within a prescribed period (originally 14 days, but later changed to 30 days) and if they hadn’t done so (or couldn’t prove that they had done so) any s21 Notice was invalid. This encouraged landlords to comply, and after some considerable hiccups with the legislation (see here and here) this system now seems to be working satisfactorily.

This was encouraging – a self-enforcing piece of legislation – so the government has now imposed a number of additional requirements. For tenancies starting after 30th September 2015 a landlord also has to serve the tenants with:
• An energy performance certificate
• A gas safety certificate
• A copy of the current booklet “How to rent: the checklist for renting in England”
And if they don’t they can’t serve a s21 notice until they do. This only applies to new tenancies – not periodic  tenancies that come into force after that time on the expiry of a fixed term. Note however that it does apply to a contractual periodic tenancy, or a replacement tenancy which merely replaces a former tenancy of substantially the same premises and is between the same parties.

Do note that landlords also have to fit smoke and carbon-monoxide alarms on all residential lettings (smoke alarms on every storey and CO alarms in rooms with a solid-fuel stove) from 1st October or they can be fined. This covers ASTs and all lettings for up to 7 years, apart from those shared with the landlord’s family and a few others. But it doesn’t affect the ability to serve a s21 Notice.

More Changes

There is now a prescribed form of s21 Notice. Not very different to the one that was normally used before. But if you don’t use the new one for a letting starting after 30th September 2015 then it isn’t valid. And if you use the new form on an existing letting it is misleading, because the explanatory notes are incorrect, so it is best not to use it. Please note that the first version of the Regulations (which also cover the requirements on energy performance certificates etc) messed up the form of notice and it had to be corrected. This new version is the form to use.

s21 Notices banned in first four months

For ASTs starting after 30th September  the s21 notice cannot be served in the first 4 months of the tenancy, or, if it follows on from an earier tenancy of the same property, within 4 months of the start of the earlier tenancy. Court proceedings must be started within 6 months of the notice (in most cases). So the old tactic of serving a notice with the tenancy is over.

And the end of retaliatory evictions

Well, that’s the intention. Landlords got into the habit of threatening to serve a s21 Notice on any tenants who looked as if they might be difficult, for example by complaining about defects in the property which the landlord ought to repair – say a leaky roof. This was clearly a bad thing, and unfair to tenants, and so s33 Deregulation Act says that s21 Notices can’t be served within 6 months:
• After an improvement notice, or an emergency remedial action notice, under the Housing Act 2004 has been served by the Local Authority; or
• After a tenant has written to complain about conditions, the landlord didn’t give a relevant response within 14 days and the tenant complained to the LA, and the LA served a notice.

There is argument in the legal press about whether the “relevant response”, which ought to be how the landlord proposes to address the problem, and a reasonable timescale for doing so, matters, or if a notice can be served anyway. The advice must be to respond, because it may persuade the LA that nothing further needs to be done.

Whether this will work very well in practice isn’t clear as most LA housing officers are very pressed and can barely keep up with their workload at present, but it is a start. We shall see.

Finally

This is a very simplified view of complicated law, which only applies to England, as Wales and Scotland have their own legislation. There is a lot more information on the Nearly Legal blog, and a whole series of very useful pieces on Tessa Shepperson’s Landlord Law blog. But at least you now know these changes have been made, and can go off and look things up. Job done.