Housing Team Legal Bulletin - Garden Court North Chambers

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People’s rights through justice
Housing Team
Legal Bulletin
Issue 30. February 2012
Going home after a
lawful eviction
In this edition we look at the steps that can be taken to
reinstate a tenant to their home after execution of a
warrant for possession has taken place.
Seting aside the possession order or the warrant
Following a ‘lawful’ eviction (ie one achieved by
execution of a bailiff’s warrant) a tenant will only
be able to return home if they either successfully apply
to set aside the possession order (in which case the
warrant will also be set aside – see Governors of
Peabody Donation Fund v Hay (1987) 19 HLR 145,
CA) or successfully apply to set aside the warrant.
An abuse of process also occurs where a landlord fails
to obtain permission to issue a warrant pursuant to a
possession order that is more than six years old (see
Hackney LBC v White (1996) 28 HLR 219, CA). White
is in an interesting case because it reminds us that a
warrant only lasts for 12 months (unless it is renewed
by the court at the end of the 12 month period for a
further 12 months). That means that a landlord who
obtains permission to issue a warrant but who neither
enforces it nor renews it within 12 months (perhaps
because it is suspended on terms) will need to apply
afresh for permission if he decides to seek an eviction
after 12 months.
Oppression
Moving on to oppression, in Southwark LBC v Sarfo
(2000) 32 HLR 602 at 609, the Court of Appeal
observed that:
Setting aside a possession order will depend upon
whether the claim form was served upon the tenant (if it
was not the possession order must be set aside – see
White v Weston [1968] 2 QB 647, but remember that
not receiving the claim form is not the same thing as it
not having been served). If the claim form was served
then relevant points, amongst other things, will be
whether the tenant had a good reason for not attending
the hearing, has acted promptly after finding out about
[O]ppression may be very difficult if not impossible
to define, but it is not difficult to recognise. It is the
insistence by a public authority on its strict rights
in circumstances which make that insistence
manifestly unfair. The categories of oppression
are not closed because no-one can envisage all
the sets of circumstances which could make the
execution of a warrant oppressive.
the order and has reasonable prospects of successfully
defending the matter – disputes about the arrears and
arguable counterclaims will often provide reasonable
prospect of successfully defending the matter.
Setting aside a warrant is not easy, as in order to do so
a tenant must show that it has been obtained by fraud
or that there has been an abuse of process or
oppression in its execution (see Leicester City
Council v Aldwinckle [1991] 24 HLR 40).
You will know fraud when you see it, so we shall
concentrate on abuse of process and oppression.
Abuse of process
An abuse of process occurs when a court rule, which is
more than a mere formality, is not complied with.
Therefore, a warrant that is issued before the date on
which it is ordered that possession be given is a nullity
(see Tuohy v Bell [2002] EWCA Civ 423), and
The courts have not been afraid to find that landlords
have acted oppressively. For example, warrants have
been set aside where (i) a housing officer deterred a
tenant from seeking legal help or advice or otherwise
applying to the court to suspend the warrant before it
was executed; (ii) a local authority knew that its tenant
was in prison serving a short custodial sentence, but
did not send housing benefit renewal forms to him in
prison and did not take into account the overpayments
he had previously made to the arrears; (iii) a local
authority continued with an eviction even though the
tenant had paid the full amount of the arrears to its
housing officer just before the eviction took place; (iv) a
local authority, in a case where the tenant was making
irregular payments towards arrears of £274, failed to
have regard to its own rent arrears policy requiring it to
use eviction only as a last resort and failed to consider
applying for an attachment of earnings order against
the tenant, who was in work; and (v) although it is not
always necessary, oppression may arise when a tenant
is not warned that a warrant has been applied for (see
enforcement of such a warrant is an abuse of process.
Dedicated to providing a high quality service for all clients, particularly those disadvantaged by discrimination and inequality.
22 Oxford Court, Manchester M2 3WQ T: 0161 236 1840 E: [email protected] W: www.gcnchambers.co.uk
People’s rights through justice
rd
Jephson Homes Housing Association v Moisejevs
[2001] 33 HLR 594, CA).
County Court May 23
Importantly, particularly considering the impending
changes to the county court desk opening hours,
oppression is not confined to the actions of the landlord.
For example, oppression was been found to be present
when a court officer incorrectly told a tenant that there
was no warrant to apply to suspend when, as the tenant
1233, that after eviction has taken place the court does
not even have jurisdiction to hear an appeal of the
refusal to suspend the warrant. If that is correct, it leads
to the absurd result that a tenant who is evicted
because a district judge reached the wrong decision
cannot be reinstated to his home, whereas a tenant
found out after he had been evicted, in actual fact there
was (see Hammersmith and Fulham LBC v Lemeh
(2001) 33 HLR 231) and where a tenant’s solicitor was
who has succeeded in showing oppression (including
oppression arising from a mistake by a mere court
clerk) could be.
told that no judge was available to hear an application
to suspend but that he could make it the following
morning even though by then the eviction would have
taken place (see Islington London Borough Council
v Harridge, The Times, June 30, 1993).
2011, Jaff was represented by
GCN’s Ben McCormack), it was found, relying largely
upon Circle 33 Housing Trust v Ellis [2005] EWCA Civ
Since an appeal court has all the powers of the lower
court at the time of the hearing (CPR 52.10), arguably it
does have the jurisdiction to hear an appeal, to
suspend the warrant and as a consequence of that
suspension to order re-admittance. However, the
In each of the above examples of oppression someone,
whether the landlord or the court, was at fault. Action on
someone’s part which is open to criticism is required in
order to obtain a finding of oppression Without it an
application to set aside a warrant will fail. Moreover,
even if there has been action open to criticism, it will not
be found to be oppressive where no prejudice has been
caused to the tenant. So, in Moisejevs, even though
uncertainty is unlikely to be removed until the Court of
Appeal determines the issue. In the meantime, the
advice in Jaff to appeal immediately (ie, there and then)
criticism could be made of the landlord because it had
written a letter to the tenant stating that the only way to
avoid eviction was to pay the arrears in full, the court
found that there was no oppression, because on the
facts of the case, the tenant had not been misled by the
letter.
29 February 2012
to the circuit judge should be followed where it is
believed that the district judge has made the wrong
decision.
Andrew Byles
Garden Court North
th
Informal Advice
Please bear in mind that barristers at GCN are always
Even if a tenant succeeds in showing that there was
oppression, it is essential that they act promptly in
available to give informal advice on any housing
making their application to set aside the warrant. This is
because the court retains a discretion as to whether to
order readmission to the property (see Sarfo where the
(Sarah Wright, Annmarie Nightingale or Nicola Carroll)
tenant waited until after the property had been
demolished before making her application). When
making an application to set aside a warrant it is good
practice to seek the landlord’s agreement not to re-let
the property until the application is determined and to
consider applying for an interim injunction if such
agreement is not forthcoming.
Appealing refusal to suspend a warrant
matters. In the first instance please contact the clerks
on 0161 236 1840.
GCN housing team
Sonia Birdee
Andrew Byles
Laura Cawsey
Jared Ficklin
Peter Hodson
Ben McCormack
Philip McLeish
Although it is clear that a tenant can be reinstated if the
possession order or the warrant is set aside, there is
considerable uncertainty as to what happens when a
tenant is evicted following an application to suspend a
warrant where it is argued that in refusing to suspend,
the judge reached the wrong decision. In Bolton at
Home Ltd v Dashty Jaff (unreported, Manchester
Rory O’Ryan
James Stark
Kate Stone
Camille Warren
Dedicated to providing a high quality service for all clients, particularly those disadvantaged by discrimination and inequality.
22 Oxford Court, Manchester M2 3WQ T: 0161 236 1840 E: [email protected] W: www.gcnchambers.co.uk
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