The new Protocol for possession claims brought to Court by housing associations, local authorities and housing trusts came into force on 6 April 2015, without a great deal of publicity.
The new Protocol, which had been awaited by the housing sector for some considerable time, is already the subject of some debate, and looks set to change the way in which the sector will need to manage cases brought on summary possession grounds moving forward.
The first thing to note is that the Protocol covers claims for possession brought by the social rented sector generally and is not limited to claims brought upon grounds of rent arrears.
Parts 1 and 2 of the new Protocol reflect in many respects the drafting of the old Protocol, however an additional paragraph has been added to require the landlord to consider at an early stage whether or not the tenant has the mental capacity to defend the proceedings, and if not, to make an application for the appointment of a litigation friend. There is also a requirement that the landlord consider any issues which arise under the Equality Act and for local authority landlords, whether there is a need for a community care assessment. Landlords would do well to make sure that there is an adequate paper trail on their files to show that they have considered these issues prior to embarking on a possession claim.
Part 3 of the Protocol applies to mandatory possession cases so, for example possession claims brought against non-secure tenancies, unlawful occupiers and non-successors. It will also apply in cases where one joint tenant chooses to terminate the agreement, and their partner fails to leave.
In mandatory possession cases, the Protocol provides that the Court will grant possession provided that prior to issuing any possession claim the landlord has written to the occupants explaining why they intend to seek possession and requiring the occupants to notify the landlord in writing within a specified time of any personal circumstances or other matters they wish the landlord to take into account. In many cases this letter could accompany the notice to quit and the protocol suggests would not necessarily hold up proceedings provided that the letter was sent out at that point.
The Protocol also requires the landlord to consider any representations received prior to issuing proceedings and if the landlord decides to proceed to give brief written reasons for doing so.
In mandatory possession cases the protocol also requires the landlord to include in its particulars of claim or any witness statement filed in support of the claim a schedule summarising whether a review of the decision has been offered, if representations were made and that they were considered, brief reasons for bringing proceedings and copies of any relevant documents which the social landlord wishes the Court to consider in relation to the proportionality of the landlord’s decision to bring proceedings.
In some respects the requirements now imposed by Part 3 of the Protocol are bound to catch out the unwary. There is already some debate as to how far the requirement to follow the Protocol stretches. Are notices to quit to terminate temporary accommodation covered for example? On the positive side, that the Court has some information relating to the proportionality of the landlords decision available to it as part of the particulars of claim, may help landlords to convince the Court that the application for possession can indeed be dealt with at first hearing on a summary basis and that there is no need for the Court to adjourn in order to seek further information. There are no doubt some interesting times ahead as both landlords and tenants seek to use the new part 3 of the Protocol to their advantage. In the meantime, landlords should ensure that there policies and procedures are updated.
