I find that landlords are often ignorant of how poorly possession claims are drafted, and how it ruins their chances at court.
New streamlined procedures that make it easier for landlords to use a High Court Enforcement Officer (HCEO) to evict residential tenants came into force on 23rd August 2020.
Guest article by Tim Briggs, Managing Director of LegalMentor Landlords
It can be a complicated area of law - any landlord who has ever looked at Section 21 of the Housing Act 1988 will see why they might consider getting professional help. Companies such as ours help landlords issue claims for possession at fixed fees and arrange for an advocate to go to court with the landlord on the day of the hearing.
Role of advocates
The advocates at court are mostly trained as barristers (often not fully qualified), and some are solicitors or legal executives. The advocates have to be skilled of course, and ready to carefully put the landlord’s case to the Judge. But the reality is this: when problems occur at court, it is as a result of mistakes in the way the claim has been drafted. So by the day of the court hearing, if the paperwork has been done badly, the lawyer’s hands are tied.
Paperwork mistakes in 90% of cases
The truth is that for more than 90% of the time there are mistakes in the paperwork – in the last ten hearings I did for well-known tenant eviction companies representing both landlord and tenant, I estimated that there were mistakes in all but one claim. The reality is that if mistakes are spotted at court by the Judge or a duty solicitor acting for the Defendant, the mistakes can defeat or delay the claim. Getting tripped up by ‘snakes’ in the paperwork can send you back to square one.
It does not matter if the tenant has not paid rent for months. If there are problems with the paperwork, the Judge will either adjourn the hearing, or strike out the claim. Either way, the landlord ends up paying by losing more rent, or having to start again and issue a new claim. All that effort in climbing metaphorical ladders to get your tenant out will have come to nothing.
It is common practice that when mistakes are made in the paperwork by companies issuing claims on behalf of landlords, the company fails to tell the landlord that it was their mistake which caused the Judge to act as they did. Instead it is left to the landlord to assume that the Judge has made a strange decision, that courts are random and unpredictable places, and that the law bends over backwards to help tenants over landlords, none of which is true.
Climb the ladders
Contrary to popular belief, Judges are perfectly happy to give possession to landlords so long as the paperwork has been done correctly, and the law observed. Judges are strict about the legal requirements for a landlord to get possession because they have to be. The law strikes a good balance between the right of someone to stay in their home and the right of the owner of the property to do what they want with their own property. Judges simply follow the law. But the evidence has to be correctly served, pleaded and presented. If there is not enough evidence, or there are procedural defences as a result of mistakes in the paperwork, the Judge will not make an order removing someone from their home.
Avoid the snakes
Whether or not the property is part of a portfolio, or a single one bedroom flat that is a future pension, or a nest-egg for the landlord, it is the landlord’s baby, and the landlord needs help in getting it back. But professional help should mean that the proceedings and notices are issued correctly, and are not flawed from the outset.
Ten typical snakes
- The company fails to instruct a lawyer to attend the hearing - quite common, and the landlord pays for the lost rent until the next hearing
- The tenants’ names are not spelt correctly on the particulars of claim – this can stop the eviction
- The advocate is not sent all the papers
- The evidence of service is insufficient
- The Section 21 Notice has the wrong expiry date on it - even some duty solicitors do not seem to know the difference between a Section 21(4)(a) Notice and Section 21(1)(b) Notice
- Reliance on Section 21 is not set out properly in the claim
- The date of expiry on the Section 8 Notice is incorrect
- The Particulars of Claim is not CPR 55 compliant - if in doubt about what information to give, provide more than is necessary
- The dates of service are wrong - the lettings agent or company helping evict may not understand the rules for dates for service under Part 6 of the Civil Procedure Rules. Unfortunately, Judges do!
- Arrears statements are wrong or confusing - many claims will get adjourned by Judges because credits, debits and arrears totals seem incorrect