Going home after an eviction by Andrew Byles

Following a ‘lawful’ eviction (ie, one achieved by execution of a bailiff’s warrant of possession) a tenant will only
 be able to return home if they either successfully apply to set aside the possession order (in which case the warrant will also be set aside – see Governors of Peabody Donation Fund v Hay (1987) 19 HLR 145, CA), successfully apply to set aside the warrant or reach an agreement with the landlord. Tip 1: At the earliest stage possible invite the landlord to re-admit the tenant to the property. Such invitations are more likely to be granted if the tenant: (a) is able to make a payment towards the arrears as a condition of re-admittance; (b) is particularly vulnerable (references to the applicable parts of the Equality Act 2010 may assist); or (c) is able to point to an obvious error on the part of the landlord.

Setting aside a possession order will depend upon whether the claim form was served upon the tenant (if it was not the possession order must be set aside – see White v Weston [1968] 2 QB 647, but remember that not receiving the claim form is not the same thing as it not having been served). If the claim form was served then relevant points, amongst other things, will be whether the tenant had a good reason for not attending the hearing, has acted promptly after finding out about the order and has reasonable prospects of successfully defending the matter – disputes about the arrears and arguable counterclaims will often provide reasonable prospect of successfully defending the matter. Tip 2: When applying to set aside a possession order make sure that the applicant’s reason for failing to attend the hearing is as fully evidenced as possible (eg, if the applicant was ill obtain proper medical reports explaining why the applicant was not fit to attend the hearing/trial and fully explain or the applicant was delayed by a late bus fully explain why it was not practicable for the applicant to have anticipated that delay and taken an earlier bus) and that, in cases where it might appear at first glance that the application has not been made promptly, the steps taken to set aside the order are carefully set out.   

Setting aside a warrant is not easy, as in order to do so a tenant must show that it has been obtained by fraud or that there has been an abuse of process or oppression in its execution (see Leicester City Council v Aldwinckle [1991] 24 HLR 40).

You will know fraud when you see it, so we shall concentrate on abuse of process and oppression. 

An abuse of process occurs when a court rule, which is more than a mere formality, is not complied with. Therefore, a warrant that is issued before the date on which it is ordered that possession be given is a nullity (see Tuohy v Bell [2002] EWCA Civ 423), and enforcement of such a warrant is an abuse of process. Tip 3: Where possible obtain a copy of the landlord’s N325 form requesting the court to issue a warrant as mistakes in the form may also result in the warrant being null – see Chamber’s Jonathan Holt’s article here for more information.

An abuse of process also occurs where a landlord fails to obtain permission to issue a warrant pursuant to a possession order that is more than six years old (see Hackney LBC v White (1996) 28 HLR 219, CA). White is in an interesting case because it reminds us that a warrant only lasts for 12 months (unless it is renewed by the court at the end of the 12 month period for a further 12 months). That means that a landlord who obtains permission to issue a warrant but who neither enforces it nor renews it within 12 months (perhaps because it is suspended on terms) will need to apply afresh for permission if he decides to seek an eviction after 12 months.

Moving on to oppression, in Southwark LBC v Sarfo (2000) 32 HLR 602 at 609, the Court of Appeal observed that:

[O]ppression may be very difficult if not impossible to define, but it is not difficult to recognise. It is the insistence by a public authority on its strict rights in circumstances which make that insistence manifestly unfair. The categories of oppression are not closed because no-one can envisage all the sets of circumstances which could make the execution of a warrant oppressive.

The courts have not been afraid to find that landlords have acted oppressively. For example, warrants have been set aside where (i) a housing officer deterred a tenant from seeking legal help or advice or otherwise applying to the court to suspend the warrant before it was executed; (ii) a local authority knew that its tenant was in prison serving a short custodial sentence, but did not send housing benefit renewal forms to him in prison and did not take into account the overpayments he had previously made to the arrears; (iii) a local authority continued with an eviction even though the tenant had paid the full amount of the arrears to its housing officer just before the eviction took place; (iv) a local authority, in a case where the tenant was making irregular payments towards arrears of £274, failed to have regard to its own rent arrears policy requiring it to use eviction only as a last resort and failed to consider applying for an attachment of earnings order against the tenant, who was in work; and (v) although it is not always necessary, oppression may arise when a tenant is not warned that a warrant has been applied for (see Jephson Homes Housing Association v Moisejevs [2001] 33 HLR 594, CA).

Importantly, particularly considering the changes to the County Court desk opening hours, oppression is not confined to the actions of the landlord. For example, oppression was been found to be present when a court officer incorrectly told a tenant that there was no warrant to apply to suspend when, as the tenant found out after he had been evicted, in actual fact there was (see Hammersmith and Fulham LBC v Lemeh (2001) 33 HLR 231) and where a tenant’s solicitor was told that no judge was available to hear an application to suspend but that he could make it the following morning even though by then the eviction would have taken place (see Islington London Borough Council v Harridge, The Times, June 30, 1993).

In each of the above examples of oppression someone, whether the landlord or the court, was at fault. Action on someone’s part which is open to criticism is required in order to obtain a finding of oppression Without it an application to set aside a warrant will fail. Moreover, even if there has been action open to criticism, it will not be found to be oppressive where no prejudice has been caused to the tenant. So, in Moisejevs, even though criticism could be made of the landlord because it had written a letter to the tenant stating that the only way to avoid eviction was to pay the arrears in full, the court found that there was no oppression, because on the facts of the case, the tenant had not been misled by the letter.

Even if a tenant succeeds in showing that there was oppression, it is essential that they act promptly in making their application to set aside the warrant. This is because the court retains a discretion as to whether to order readmission to the property (see Sarfo where the tenant waited until after the property had been demolished before making her application). Tip 4: When making an application to set aside a warrant it is good practice to seek the landlord’s agreement not to re-let the property until the application is determined and to consider applying for an interim injunction if such agreement is not forthcoming.

Although it is clear that a tenant can be reinstated if the possession order or the warrant is set aside, there is considerable uncertainty as to what happens when a tenant is evicted following an application to suspend a warrant where it is argued that in refusing to suspend, the judge reached the wrong decision. In Bolton at Home Ltd v Dashty Jaff (unreported, Manchester County Court May 23rd 2011- Jaff was represented by Garden Court North Chambers’ Ben McCormack), it was found, relying largely upon Circle 33 Housing Trust v Ellis [2005] EWCA Civ 1233, that after eviction has taken place the court does not even have jurisdiction to hear an appeal of the refusal to suspend the warrant. If that is correct, it leads to the absurd result that a tenant who is evicted because a district judge reached the wrong decision cannot be reinstated to his home, whereas a tenant who has succeeded in showing oppression (including oppression arising from a mistake by a mere court clerk) could be. Since an appeal court has all the powers of the lower court at the time of the hearing (CPR 52.20), arguably it does have the jurisdiction to hear an appeal, to suspend the warrant and as a consequence of that suspension to order re-admittance. However, the uncertainty is unlikely to be removed until the Court of Appeal determines the issue. Tip 5: If the district judge wrongly refuses to suspend a warrant of possession, the advice in Jaff to appeal immediately (ie, there and then) to the circuit judge should be followed.

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