The recent case of Cardiff City Council v Lee [2016] EWCA CIV 1034 has cast light on a change to the Civil Procedure rules made in 2014 but which had been largely overlooked.
Summary
- The Court’s permission is required before a landlord issues a warrant of possession where there has been a breach of a suspended or postponed possession order. This applies to cases involving rent arrears, anti-social behaviour or any other tenancy breach
- It does NOT apply to enforcing outright orders for possession
- Permission needs to be sought on a standard application notice supported by evidence. It can be made without notice to the tenant and the relevant court fee (£100 for without notice applications) must be paid
The effect of the case
For many years landlords have adopted the practice of deciding for themselves whether the terms of a suspended or postponed possession order have been breached and then making an application for a warrant. The onus was then on the tenant to apply to suspend or set aside the warrant and if he failed to do so the landlord could obtain possession without any judicial consideration of whether there had actually been a breach.
An amendment to the Civil Procedure Rules in 2014 changed this position.
Civil Procedure Rule 83.2
(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
This procedure was, however, largely overlooked by landlords and courts alike, but in Cardiff v Lee the Court of Appeal confirmed that this procedure applied to all cases where the right to possession was suspended subject to the fulfilment of a condition by the tenant (eg payment of current rent plus a n amount per week in reduction of arrears, or not engaging in anti-social behaviour) and the landlord was alleging that this condition had not been met.
In that particular case, the Court was willing to “remedy” Cardiff Council’s mistake in procedure and allow the warrant to be enforced but made it clear that this rule must be complied with, Lady Justice Arden saying:
“I reiterate that CPR 83.2 constitutes an important protection for tenants. It is not to be taken lightly. Social landlords must ensure that from now on their systems are such that the same mistake will not be made in future”
What do landlords need to do to comply with the rule?
In any case where a landlord wishes to enforce a possession order which has been suspended or postponed on terms that the tenant complies with some condition or conditions, the landlord must make an application to Court to obtain permission before payment for a warrant. This applies to social and private landlords alike.
This is not needed where there is an outright order for possession
CPR Rule 83.2 states:
(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; …….
(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
This makes it clear that the application can be made without notice to the tenant, but it must be supported by evidence. A standard form N244 application notice should suffice with the evidence set out in section C of that form which must include the matters specified in Part 83.2(4). Cases are likely to be dealt with by District Judges on paper without the need for a hearing unless there is something contentious or unclear.
Impact on landlords
This introduces a new stage in rent possession proceedings which will cause some delay and additional cost. Landlords may wish to consider carefully whether to seek warrants at the first breach or look to work with tenants who are in breach to seek to remedy the breaches at an early stage and avoid the need for making this further application.
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