Cardiff City Council v Lee - yet more delay for landlords?
Wednesday, 14th December 2016
Any landlord who has issued possession proceedings against a tenant will be aware that the process can take a long time. Even in cases of serious ASB, the pressure on the Courts is such that possession proceedings can take several months at best - over a year at worst - to reach trial. If a suspended order is made, landlords then face the prospect of tenants applying to stay warrants. However, the process between the making of the order and the application for the warrant has been relatively straightforward - until now. The recently decided Cardiff v Lee case could add further delay for some types of cases. But is this decision as painful for landlords as first impressions suggest?
The facts are straightforward and commonplace. The tenant was a secure tenant who had breached the terms of his tenancy by engaging in ASB. A possession order was duly made, suspended for a period of 2 years on the basis the tenant complied with the terms of his tenancy. The tenant breached the SPO terms and so the landlord submitted the request for the warrant. The tenant applied to stay the warrant.
The tenant's focus - and the issue that the Court of Appeal addressed - was whether a landlord could simply apply for a warrant of possession without seeking the permission of the Court - which CPR 83.26 seems to suggest is the case - or whether the permission of the Court needs to be obtained before a warrant can be applied for in suspended possession cases, which CPR 83.2 seemed to state is the case.
The Court decided upon the latter. In short, in suspended possession order cases (the position re applying for warrants in outright possession cases is unchanged) the landlord needs to demonstrate that the terms of suspension have been breached, as required by CPR 83.2, before the warrant can be issued. The Court went on to spend time in looking at whether in this case dispensation should be given to the landlord, pursuant to CPR 3.10, and effectively excuse the landlord's failure to obtain permission before the warrant was issued. In this case, the Court of Appeal felt that the Court should exercise its powers under 3.10 in the landlord's favour. However, landlords should not rely upon this dispensation going forward; the provisions of CPR 83.2 have now been highlighted and landlords will be expected to follow the correct procedure in future cases.
What does this mean in practice? At the present time, in cases where a suspended order is made and the terms are breached, landlords will be required to submit a without notice application to the Court (and pay the requisite fee) and seek a finding from the Court that there has been a breach before the request for the warrant can be submitted to the Court.
On first impressions, it is easy to see this decision as problematic for landlords. Another layer of delay and the expense of an application (currently £100) is understandably seen as unwelcome. However, there are some positives. The judgment expressly states that the "purpose of the rule is obviously to provide a layer of judicial protection for a tenant whom the landlord wants to evict." The case has therefore been welcomed by tenants. However, this layer of protection could also help landlords. If a Judge does have to consider evidence of breach and is satisfied that there has been a breach, it could dissuade some tenants from submitting applications to stay warrants and make it more difficult for those who do apply to argue there has been no breach. At the very least, it could cut down the time suspension of warrant hearings take.
In rent arrears cases in particular, where suspended orders are common, compliance with CPR 83.2 could be troublesome and costly for landlords. Commentators expect an amendment to CPR 83 to be made to avoid the need for applications being made - but it will be interesting to see if any change affects only rent arrears cases or all possession claims.