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THE PROFESSIONAL ASSOCIATION FOR LANDLORDS

MEDIA PORTAL

PRE-ACTION PROTOCOL

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This pre-action protocol was originally meant for Social Landlords, but during the 2020 Coronavirus Pandemic all landlords are being asked to adhere to it.  The principal is to interact with tenants to solve problems before they go to court; offer arbitration.

It is critical to keep records of any such interaction.

 

The actual protocol can be seen here, but in summary is:-

  • to encourage more pre-action contact and exchange of information between landlord and tenants
  • if possible, to enable landlords and tenants to avoid litigation and settle disputes out of court
  • if court proceedings are inevitable, to enable an effective use of court’s time and resources.

 

Communications and provision of information

The protocol requires that the landlord should take reasonable steps to ensure that the tenant understands any information provided. The landlord should be able to demonstrate what steps have been taken to this effect.

If the landlord is aware that the tenant is aged under 18 or is particularly vulnerable for other reasons, the landlord should consider at an early stage:

  • whether the tenant has the necessary mental capacity to defend a possession claim and, where appropriate, apply to appoint a litigation friend under Part 21 of the Civil Procedure Rules (see our Fact Sheet on Capacity Issues)
  • whether there are any discrimination issues under the Equality Act 2010

Court proceedings as last resort

Court proceedings should be a landlord’s last resort. Possession proceedings should not be issued prematurely when a settlement out of court is still actively being explored.

Part 1 outlines the procedure.

Part 2 relates to claims which are brought solely on the basis of rent arrears. It reflects the guidance on good practice for landlords in the collection of rent arrears.

Part 3 relates to claims brought on mandatory grounds for possession.  It is aimed at Social Landlords, but now also applies to Private Landlords.

As soon as practicable possible after the tenant falls in rent arrears, and before serving the required statutory notice of seeking possession, landlords should:

  • provide quarterly rent statements showing rent outstanding and paid in the last 13 weeks
  • contact the tenant to discuss the tenant’s financial circumstances, any entitlement to benefits, and the reason for the arrears
  • try to agree with the tenant an affordable arrangement for paying the arrears with any arrangement to be confirmed in writing
  • assist the tenant with any claim for benefits, including housing benefit, the housing element of universal credit, and/or discretionary housing payments
  • advise the tenant to seek independent advice, especially if s/he has a general debt problem
  • if the tenant meets the criteria, arrange for direct payments of arrears to be made to the landlord from the tenant’s benefits
  • not start possession proceedings when the tenant has provided all the necessary evidence to support a benefit claim and there is a reasonable expectation that s/he will be entitled
  • establish effective liaison with the benefit department and/or the Department for Work and Pensions.

Claim for rent arrears – after service of notice

After serving the statutory notice of seeking possession, and before issuing possession proceedings, landlords should:

  • make reasonable efforts to contact the tenant to discuss the situation and send to the tenant a copy of the actual Protocol
  • postpone the court proceedings for as long as the tenant is complying with an agreement to pay current rent plus an amount towards the arrears
  • warn the tenant who has stopped complying with a repayment agreement of the intention to resume possession proceeding, giving clear time limits and instructions on how to avoid that.

Claim for rent arrears – court proceedings

Not less than ten days before the court hearing, landlords must provide the tenant with an up-to-date rent statement, and disclose to the tenant what information they have about her/his housing benefit or universal credit position.  Note that all cases are suspended until at least September 30th 2020.

Landlords should also inform the tenant of:

  • the date and time of the court hearing
  • the order they will apply for
  • the need to attend the hearing.

If after issuing proceedings the tenant has been complying with an agreement to pay, landlords should agree to an adjournment, on terms that the tenant sticks to the agreement. If the tenant subsequently fails to comply, landlords should advise the tenant that they intend to go back to court providing clear time limits.

Claim on mandatory grounds

In cases where the court must grant possession if the landlord proves the case, before issuing any possession claim landlords should:

  • write to the tenants/occupiers explaining why they currently intend to seek possession and ask them to notify the landlord in writing of any personal circumstances or other matters which they wish to be taken into account, giving clear time limits for responses – such a letter could accompany any notice to quit; and
  • consider any representations received, and if they decide to proceed with a claim for possession give brief written reasons for doing so.

If they decide to proceed with the possession claim, landlords should include in the particulars of claim, or in any witness statement, a schedule giving a summary of:

  • whether they have (by statutory review procedure or otherwise) invited the tenants/occupiers to disclose any personal circumstances or other matters which they wish to be taken into account before they issue possession proceedings
  • whether they have considered any representations made by the tenants/occupiers
  • why they are bringing possession proceedings, and
  • any relevant documents (attaching copies) which they wish the court to consider in relation to the proportionality of their decision to bring proceedings.

Sanctions

If the landlord does not comply with the terms of the protocol the court can consider compliance when making any order for costs, and where the claim is brought on discretionary grounds, adjourn or strike out the claim.

If the tenant does not comply with the terms of the protocol the court can take this into account in considering whether it is reasonable to make an order for possession.

Refusal to settle

The court can also order a defendant to pay the claimant an additional amount, not exceeding a prescribed percentage of the amount awarded to the claimant by the court, if:

  • the defendant does not accept the claimant’s offer to settle, and
  • the court subsequently gives judgment for the claimant which is at least as advantageous as the offer.

 

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