December 2016

Warrant for possession invalid for lack of Court’s permission

Where an order for possession has been made in the County Court, application to enforce the order by means of a warrant for possession is normally made by using Form N325. This procedure does not normally require the court’s permission.

However, there are circumstances when the court’s permission is required.

The Court of Appeal considered the need for permission in the case of a suspended order for possession in the recent case of Cardiff County Council v Lee (Flowers) [2016] EWCA Civ 1034 – Order for possession suspended for 2 years subject to compliance with tenancy covenants not to cause nuisance or annoyance.

The Court held that in the case of conditional orders for possession a landlord must first establish that the condition has been fulfilled before a warrant can be issued. “This constitutes an important protection for tenants. It is not to be taken lightly. …Landlords must ensure that from now on their systems are such that the same mistake will not be made in future”. Otherwise the obligation would be on the tenant to apply for a stay and many tenants would not realise they had the right to apply for a stay and therefore be wrongly evicted.

In the event, in this particular case, on the tenant’s application to set aside the warrant, the Court accepted that following the wrong procedure had been a genuine error by the landlord and the Tenant had suffered no prejudice. The court allowed the landlord to remedy the defect and validate the warrant. The indications were that the outcome would have been otherwise had the Landlord not been able to show it was a genuine mistake or if it knew that it was not entitled to proceed that way. However, hereafter it may be very difficult for a Landlord (and particularly a professional landlord) to raise the ‘genuine mistake’ argument in future cases.

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