Landlords and mortgagees will now need to act very carefully before they try to enforce a possession order against their respective tenants/mortgagors following the recent decision by the Court of Appeal in Cardiff County Council –v- Lee.
The Court of Appeal has determined that anyone applying for a warrant of possession must first apply to Court for permission to enforce a suspended possession order and can no longer simply issue the form N325 straightaway.
In accordance with Civil Procedure Rule 83.2 (1) (d), warrants of possession fall within the category of warrants which may require permission to be issued. The relevant procedure rule states that where an order is suspended on terms, most commonly in respect of payment of rent and a breach of those terms is alleged by the applicant, permission must be sought to enforce the order. This means that the applicant needs to make a separate application to the Court providing evidence of the breach which is being relied upon, before the Court can be satisfied that permission should be given to issue the warrant.
A question was also raised before the Court of Appeal as to whether it was acceptable for a Court to rely on Civil Procedure Rule 3.10 to excuse the failure to get permission before a warrant of possession was applied for, where a tenant or mortgagor had made their own application to suspend the eviction. The Court of Appeal held that at a hearing of an application to suspend the warrant, the Court can rely on rule 3.10 to excuse the failure to seek possession, provided that the defendant (i.e the tenant or mortgagor) has been given the opportunity to put their position forward to the Court.
The requirement for permission to be sought before a warrant for possession is issued is seen as a safeguard for the tenant/ mortgagor and is an important stage in the process of getting possession of the property which should not be overlooked.
At this moment in time, it is unclear as to whether the Court will regularly exercise their discretion under rule 3.10. However, it should now be the case that landlords and mortgagees are by routine submitting applications for permission before the warrant of possession is granted.
If you do receive a warrant of possession from your landlord or mortgagee, Stephensons have a specialist housing team who can provide advice and assistance about this.
If you require legal advice, please contact our housing law team on 01616 966 229.