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Newsflash for lenders and landlords: Court process changes in suspended possession cases

Key on tenancy document Print publication

22/11/2016

On 1 November 2016 Walker Morris reported that the recent housing case of Cardiff County Council v Lee (Flowers) [1] might well impact upon landlords’ and lenders’ possession processes.

Our warning has proved to be prescient. We have already received correspondence from the court in several cases in which we have been notified that, in light of that case, a formal application for leave to enforce a suspended possession order must now be made in accordance with Civil Procedure Rule 83.2(3)(e) before a warrant for possession may be granted.

The Civil Procedure Rules Committee (‘CPRC’) discussed the case at their meeting on 4 November, and arranged for a sub-committee to consider the impact and report back by February 2017. The case will remain on the Agenda for the next CPRC meeting on 9 December, and we understand that guidance for Court users, staff and the judiciary is currently being finalised for intended release by the end of this week.

In the absence of any immediate guidance from the Civil Procedure Rules Committee (‘CPRC’), it is important that lender claimants seeking to enforce a suspended possession order comply with the additional step of applying for the court’s permission with a witness statement in support. The application will also involve an additional court fee (currently £100) and legal preparation cost.

We also understand that the Court Service is considering whether any appropriate changes can be made to Form N325 Request for Warrant of Possession of Land. However, care should be taken to ensure that, if there is significant delay in the Court Service addressing this issue that customers are not adversely affected by lenders failing to take enforcement action when that is the proper step for them to take. In such cases the above procedure can be followed.

In view of the above, it may also be advisable for landlords and lenders now to review those cases where possession ultimately appears inevitable. Taking immediate and direct enforcement action might avoid any unnecessary delays with this new procedural hurdle.

Walker Morris will continue to monitor and report on developments

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[1] [2016] EWCA Civ 1034

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