Another change to the notice seeking possession

Since 1 December 2016 you have had to use a new form of notice seeking possession (Section 8 Notice). The previous prescribed form has been amended to include the new mandatory ground for possession.

A bit about the new mandatory ground…

Ground 7B was introduced by Section 41 of the Immigration Act 2016 to provide a means of removing certain tenants from housing who have a no right to remain immigration status.

If you need to rely upon Ground 7B at any point, there are some key things to remember:-

  • Ground 7B is a mandatory ground for possession. It is likely to attract defences on the ground of proportionality or pursuant to the Equality Act 2010.
  • As it is a mandatory ground, the court does not have the power to dispense with service of a notice seeking possession.
  • There is a new Section 10A to the Housing Act 1988 which empowers the court to transfer a joint tenancy into the sole name of one tenant if only one tenant does not have the correct immigration status.

The court can only exercise this power if possession is being sought solely on Ground 7B or, if there are further grounds, the court determines it is not reasonable to make a possession order on those further grounds. This will not create a new tenancy between the landlord and the remaining tenant.

Immediate action for landlords

If you haven’t already, you should ensure that your own version of the notice seeking possession (Section 8 Notice) is updated, or that you are using the prescribed form that is on the government website. Failure to do so could result in proceedings being struck out because the notice is invalid.

Enforcing suspended possession orders

There was an important decision in the Court of Appeal in October last year, affecting all possession claims where a suspended possession order ("SPO") has been made, whether for rent arrears or other breaches, including ASB. The relevant case is Cardiff City Council v Lee [2016]. The background is that a tenant applied for a suspension of the possession warrant. The District Judge dismissed the application because there had been a further breach of tenancy. The tenant then appealed and the Circuit Judge agreed with the District Judge. The tenant made a further appeal to the Court of Appeal.

The basis of the appeal

The tenant argued that no warrant for possession could be issued without permission of the court. The Civil Procedure Rules state at Part 83(3)(e):

"A relevant writ or warrant must not be issued without 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..."

The argument was that the warrant of possession is the 'remedy' and the 'fulfilment of condition' required to be demonstrated first is the breach of any terms of suspension. This effectively means that, before a warrant can be issued, permission must be obtained from the court.

For the avoidance of doubt, the decision only impacts on suspended possession orders and not outright orders.

What this means for you

The immediate impact was that there could be no enforcement of a warrant following a breach of an SPO with first applying for permission to enforce, either by making a formal application on form N244, or by requesting permission at your possession hearing to try and circumvent a later application. Happily, some swift action by the Rules Committee means that the additional work of an application can be avoided.

Following several meetings, the Committee has introduced an interim measure: a new form has been created to avoid the necessity for a formal application. It works like this:

Where a Possession Order is made and is suspended on payment of monies in relation to rent or mortgage, and the terms are breached, the Claimant should request the issue of a warrant on new Form N325A. For reissue of a warrant, Form N445 (as amended) must be used. Both forms must be accompanied by a statement of payments due.

The form plus the statement will replace a formal application in form N244. Instead of being dealt with by the Bailiff’s Clerk, the warrant request will go before a Judge who will authorise the issue of a warrant (or if not satisfied will presumably order a hearing). The fee for the new warrant request has not changed, i.e. £121, and there is no fee for a reissue.

PCOL

If your claim is proceeding via PCOL, the warrant request will have to be issued manually, but you will receive the eviction appointment via PCOL in the usual way. Currently, there is no ability to apply on the new form via PCOL.

Non-money related orders

For the avoidance of doubt, the new form cannot be used for non-arrears cases. For breaches of suspended Possession Orders that do not relate to money, i.e. for anti-social behaviour or access, permission will need to be applied for to enforce those orders using application form N244, accompanied by a supporting witness statement and a fee of £100.

Good news!

We’re sure you will agree this is good news for those of us working in this area. The use of the new and amended forms should reduce any delay (though the paperwork does have to be approved by a Judge) and no additional fees will be incurred.

About the author

Mary Rouse Partner

Mary specialises in lender litigation and in housing management advice for registered providers. With some 20 years’ experience in both of these sensitive areas, she is able to offer clear advice and pragmatic solutions.