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.

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