New interim guidance for landlords dealing with suspended possession orders

Following the significant decision in Cardiff Council v Lee in October 2016, landlords, in cases where the conditions of suspension of a possession order have been breached, have been left questioning the long-established process of obtaining a warrant for eviction. This is due to the insistence of the Court of Appeal that permission must first be obtained from the court.

In our previous blog, we provided a short summary of the case and explored the potential implications for social housing landlords, underscoring in particular the impact it could have in terms of additional costs and delays in obtaining the warrant.

In the meantime, landlords who have been granted suspended possession orders (‘SPO’s) have had to expend further time and expense (and an additional £100 in court fees) to prepare and submit an application to the court to request permission for the warrant for possession following a breach of conditions of the SPO.

On 21 December 2016, we understand that local courts were issued with guidance from HMCTS on the newly released Form N325A (Request for warrant of possession of land following a suspended order for possession) and amended Form N445 (Request for Reissue of Warrant). The courts were advised that these new forms were to be used on an interim basis as a work around until the CPR Rules Committee (“the Rules Committee”) issues its guidance, which is expected in April 2017. There is much speculation about what the new rules may be with some suggesting that the consultation may include removing SPOs from Part 83 altogether.

We understand this guidance solely applies to cases of SPOs granted on the basis of rent or mortgage arrears. Therefore, SPOs granted on the basis of anti-social behaviour (‘ASB’) or non-compliance with the terms of the tenancy agreement will not be handled in the same way. For cases of ASB, we understand the landlord will still be required to make a standard application to the court requesting permission for the warrant, incurring a court fee of £100 for a without notice application. If granted permission, the landlord will then need to make a separate request for the warrant to be executed and pay a further court fee of £121.

However, in cases of SPOs and rent or mortgage arrears, the interim guidance provided by the court will undoubtedly provide some reassurance. The interim procedure as we understand it is as follows:

• The landlord must firstly complete the new Form N325A and in accordance with the updated certification box on the right hand side of the form, a statement comprehensively detailing the payments due and made by the tenant under the SPO must be attached. The court fee will remain £121.
• If the court receives a N325A without an attached statement, it will be returned to the landlord.
• If the county court receives the N325A with an attached statement, the court will then pass the papers to a judge, who will decide whether the warrant may be issued. The judge has 3 options;

1. If the judge determines that the warrant may be issued, an order is drawn up and sent to the landlord together with the Notice of Appointment with the bailiff. We understand that the order will be served on the defendant at the same date as the Notice of Appointment with the Bailiff.
2. If the judge does not give permission on the basis of the claimant’s / landlord’s request, the court will return the papers and fee paid.
3. If the judge determines it necessary, it can list the matter for a hearing. The court will then contact the claimant/landlord to request the necessary on notice application fee of £255.

In cases of a reissue of a warrant, the amended Form N445 must be completed in the same way. In accordance with the updated certification box on the right hand corner, a statement must be attached detailing the payments due and paid under the order.

Where the possession proceedings have been conducted through HMCTS’ Possession Claims Online (PCOL) service, the relevant form should be submitted on paper to the relevant court hearing centre.

This new interim guidance will provide some much needed certainty and simplicity for landlords dealing with SPO’s suspended on payment of rent or mortgage arrears. Landlords who have been granted SPO’s on the basis of ASB will continue to face uncertainty. They will have to make an additional application and pay an extra £100 or £255 until the new rules are issued by the Rules Committee in April 2017.