What landlords need to know about the government’s ‘pre-action protocol’

The courts are due to open again on 23 August. When they do, there will be a new ‘pre-action protocol’ for landlords to comply with.

1st July 2020

Anthony Di Palma, a solicitor at DAS Law, tells you what you need to know.

Following guidance issued by The Ministry of Housing, Communities & Local Government, it has been confirmed the government has committed to work with the Master of the Rolls and the judiciary, to explore a pre-action protocol for claims for possession by private landlords.

However, this guidance is based upon the current information available from the existing protocol which may be subject to change when further information is released.

There is already a protocol in place for claims by social landlords which seeks to help parties to work through issues before taking action through the court and it is believed this will be extended to private landlords. The aim of the protocol is to encourage more pre-action contact between the parties, the exchange of information and to avoid litigation.

Points to consider prior to initiating any proceedings

Landlords will have to consider whether the tenant has any difficulty in reading or understanding information given and take reasonable steps to ensure that the tenant does understand. Landlords should be able to evidence that information has been communicated appropriately.

Also, the landlord will need to consider if the tenant is particularly vulnerable and consider any mental capacity issues to defend proceedings as well as any issues that may arise under the Equality Act 2010.

Possession claims based on rent

The current protocol for social landlords provides certain steps landlords need to meet and evidence before being able to issue proceedings.

  • The landlord should contact the tenant as soon as possible if the tenant falls into rent arrears to discuss the situation;
  • The landlord and tenant should try to agree a rent repayment plan;
  • The landlord should provide rent statements;
  • The landlord should assist the tenant in any claims for housing benefit, universal credit and other benefits they may be eligible
  • The landlord should advise tenants to seek debt advice from Citizens Advice Bureaux and appropriate debt advice services.

No court action should be started if a tenant can evidence they have already made a claim for housing benefit, provided all the information and documents asked for, and they are likely to be entitled to housing benefit.

After service of any eviction notices

Before issuing any proceedings the landlord should contact the tenant to discuss the amount of the arrears, the cause, repayment and the position in relation to any benefits claim.

If any agreement is reached, the landlord should agree to postpone issuing court proceedings. If the tenant then fails to comply with the agreement, the landlord should warn the tenant and give clear time limits within which to comply to avoid court.

Court proceedings

At least ten days before the court hearing, the landlord must give the tenant any up-to-date rent statements and disclose any knowledge about the position of any benefit claim.

The landlord should also tell the tenant the time and date of the court hearing, what it wants from the court, and advise the tenant to attend the court hearing as their home is at risk.

If an agreement is made to pay the arrears since court proceedings started, and the tenant has stuck to it, the landlord should agree to adjourn the hearing for so long as the tenant keeps to the agreement.

If the landlord unreasonably fails to follow the above steps in the protocol, the judge can make an order for costs, adjourn or dismiss the claim.

Other grounds for possession

Part 3 of the protocol for social landlords deals with possession claims based on mandatory grounds.

This states that prior to issuing any proceedings, the landlord must write to tenants explaining why it intends to seek possession and requiring the tenants to respond in writing detailing any personal circumstances or other matters which they wish to have taken into account.

The landlord should consider any representations received and, if they decide to proceed with a claim for possession, give brief written reasons for doing so.

Note that this is based on limited information available at this moment in time and we await further clarification from the government.

Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.

Struggling to pay your rent? Here’s what you need to know

The eviction ban in England and Wales has now been extended further; landlords are not able to legally enforce an eviction order until after these bans have ended.

July 2021 Learn more
A summary of your consumer rights during the Covid-19 crisis

Whilst we try and navigate the ‘new normal’ there are a number of consumer issues which are causing concern. Simon Roberts looks at everything from shopping to holidays.

June 2020 Learn more
Property boundaries – how disputes can tip neighbours over the edge

When it comes property boundaries and pruning hedges, neighbourly niggles can occur.

May 2020 Learn more

Read more from the DAS Law blog

Property disputes What to do if your neighbour’s Bonfire Night party causes a nuisance

Grace Dutton sheds light on the laws surrounding Bonfire Night and private firework displays.

November 2023
General advice , Property disputes How far you can legally go to stop someone from playing a trick on you this Halloween

Halloween is generally a ‘spooktacular’ time for all but a few bad apples can spoil the fun. So what can you do if someone chooses to play a trick and damages your property?

October 2023
Property disputes How to ensure your relationship with your neighbours doesn’t become hot and bothered

Sahib Ullah Raj from DAS Law explores the various disputes between neighbours and explains the legal options available.

September 2023
Property disputes Don’t let your private hedge be a hazard to public footpaths

Charlotte Ellis at DAS Law explains how to stay on the “right side of the law” and avoid being a nuisance when it comes to your garden or driveway.

May 2023
Property disputes Airbnb and holiday lettings: What to do with the staycation boom

Bethan Mack, a solicitor at DAS Law, answers the most important questions for existing Airbnb hosts and those thinking of renting out their properties.

April 2023
Property disputes Renting Homes (Wales) Act – What do landlords need to know

The Renting Homes (Wales) Act amendments simplifies how you rent properties. Here are the key changes for landlords.

January 2023
Property disputes Building Safety Act 2022 – Who is responsible for ensuring new properties are safe?

What are the legal responsibilities of constructors and owners under the Defective Premises Act 1972? Who else can be held responsible? Corey Evans, Paralegal at DAS Law, has the answers.

August 2022
Property disputes Renting to friends and family – make sure you’re still friends by the end of the tenancy

Tom Pertaia, Associate at DAS Law, offers guidance on the issues and questions landlords should consider when renting to friends and family.

August 2022
Property disputes Section 21 notices - what the end of “no-fault evictions” could mean

The Renter’s Reform Bill was proposed to improve protection for private renters in England, including the ending of section 21 notices.

June 2022
Property disputes Struggling to pay your rent? Here’s what you need to know

The eviction ban in England and Wales has now been extended further; landlords are not able to legally enforce an eviction order until after these bans have ended.

July 2021
General advice , Property disputes Everybody needs good neighbours. But what can be done if someone refuses to be neighbourly?

What happens when a neighbour’s plant is growing across onto your property? And what can be done if a neighbour’s tree is blocking the light into your garden?

May 2021
Property disputes Landlords – what you need to know about increasing your tenant's deposit

It’s hardly surprising that landlords are considering increasing deposits to reduce their Covid-19 risk. Nevertheless, the Tenant Fee Act limits what you can do with deposits so, as a landlord, what are your options?

February 2021
Property disputes Rent guarantors – what landlords need to know

With landlords increasingly worried about securing their rent income during Covid-19 is requesting a guarantor the answer? Saiful Ahmed, Legal Adviser at DAS Law, tells you what you need to know.

February 2021