Wednesday, 26 October 2016

LANDLORDS IN TROUBLE

Very often the county court will order a tenant out of their home but suspend - halt - the order, especially where the landlord is a social landlord such as the local council or a housing association. So the order may say that the tenant is to go by a fixed date but that the order is to be suspended so long as they pay rent arrears by specified instalments or, where there has been anti-social behaviour, so long as they do not make a nuisance of themselves for a given period.

What happens if the condition of the suspension is broken in that, for example, the tenant fails to pay the arrears instalments or plays punk music at a high volume from 1am until 6pm? The view has been taken that, in this situation, the landlord could apply to the court for the bailiff to go in without the matter coming back before a judge. But procedural rules on this were changed in 2014 and the changes have been largely overlooked.

The Court of Appeal has just ruled that under the new rules, the landlord needs the permission of a judge before asking for the bailiff to evict. It is not essential for there to be a further hearing to decide whether permission should be granted but there must be some judicial scrutiny.

This ruling will have considerable impact. If the bailiff is coming to evict under an order which was originally suspended and the landlord has not obtained prior permission to send them in, the court may cancel the bailiff's authority to evict and the landlord will have to seek judicial permission which they should have done in the first place. And if the tenant has already been evicted without that judicial scrutiny, they may be able to successfully apply for the authority under which they were evicted to be set aside and to be allowed back into the property. They could then argue against the landlord's second attempt to have them evicted. The court does have discretion to overlook the procedural breach. The Court of Appeal indicated that it might well not do so where the landlord could not show they had made genuine mistake about the procedure to be followed. A tenant who was without legal advice when evicted might also be able to persuade the court not to overlook.