The 79th amendment to the Civil Procedure Rules have significant changes for social landlords. The changes came into force on 6 April 2015.
There is a new Pre-Action Protocol for Possession Claims by Social Landlords.
Part 1 contains preliminaries about the aim and scope of the Protocol, but appears to contradict Part 3; please see more below.
Part 2 imports the pre-existing Pre-Action Protocol for possession claims based upon rent arrears, but with one notable difference. At paragraph 2.8, 'After Service of Statutory Notices', but before issue of court proceedings, in addition to the existing requirements, social landlords are now required to send the tenant a copy of the Protocol.
Part 3 'Mandatory Grounds for Possession' is entirely new and concerns any possession action which is based upon mandatory grounds. This part applies in cases where, if a social landlord proves its case, there is a restriction on the Court's discretion on making an order for possession, and/or it's a case to which s. 89 Housing Act 1980 applies (e.g. non-secure tenancies, unlawful occupiers, succession claims, and severing of joint tenancies). Cases where the court's discretion is restricted will include assured tenancy mandatory ground 8 (serious rent arrears) and shorthold section 21 claims.
The preliminaries in Part 1 appear to contradict this: 1.1 states "...The protocol does not apply to claims in respect of long leases or to claims for possession where there is no security of tenure." 1.2 then goes on to state: "Part 3 of the protocol does not apply to cases brought by social landlords solely on grounds where if the case is proved, there is a restriction on the Court's discretion on making an order for possession and/or to which s89 Housing Act 1980 applies."
This will need clarification and amendment, but in the meantime, landlords should consider complying with the requirements of Part 3 in all cases where there is a mandatory ground or s.89 Housing Act 1980 cases. Those requirements in summary:
Prior to issue the landlord must write to the occupants explaining s/he intends to seek possession and requiring them, within a specified time, to notify the landlord in writing of any personal circumstances or matters to be taken into account. The protocol suggests that such a letter is sent with a Notice to Quit and so would not necessarily delay the issue of proceedings.
Landlords should consider any representations received and, if they still decide to proceed give brief written reasons for their decision.
Landlord must include in their particulars of claim or supporting witness statement a summary confirming that the required steps have been taken and setting out details of any representations made. The summary must state that any representations have been considered and set out the reasons for continuing with possession action. Any relevant documentation the landlord wants the Court to consider in relation to proportionality must also be appended to the particulars of claim.
At the time of writing the new protocols have not been updated on the justice.gov.uk website. When the update has been made online, it should be available here:
https://www.justice .gov.uk/ courts/ procedure-rules/ civil/protocol