Double-edged sword: Can you have two possession orders at once?

In a recent case an interesting point arose around whether or not it was possible for a landlord under an AST to have two possession orders in respect of the same property at the same time.

Facts

The facts of the case were fairly typical.

Section 8 and section 21 notices were served simultaneously in the middle of October. On the expiry of the s.8 notice at the end of October Part 7 proceedings were issued. The initial directions hearing came on at the beginning of December and the court gave permission for a Defence and a Reply to be filed ahead of a further directions hearing, listed in February, to determine whether or not to proceed to trial. In due course a Defence was filed setting out a substantive defence to the claim for possession

In the meantime, when the s.21 notice expired (at the end of December) accelerated possession proceedings were issued, and a possession order was ultimately granted at the end of January. The tenant immediately made noises about applying to set aside the possession order on various grounds. A warrant was applied for and an eviction date set for early April.

No further communication on the topic was received prior to the second s.8 notice directions hearing, at which I was instructed to seek a further possession order.

This raised the question: Could we actually get another possession order?

Discussion

As it happened, the matter was compromised and the issue was not argued. However in my view it must be possible.

Landlords cannot obtain possession of a property let under an AST without a court order. Sections 7 and 21 Housing Act 1988 (‘HA88’) provide two mutually exclusive statutory bases upon which a landlord is able to obtain such an order. It must be right that so long as the AST continues to exist, these statutory rights remain open to the landlord.

The key here is that the possession order itself does not spell the end of the AST; s.5(1A) HA88 provides that the tenancy only comes to an end when the order is executed. This means that, even though a possession order has been granted pursuant to s.21, unless and until that order has been executed the AST continues.

Therefore as at the date of the second directions hearing, there was still an AST in existence, and the landlord had the right to seek an order s.7 HA88 as per the pleaded case.

Let us consider the likely ways in which the court might have attempted to refuse.

Res judicata/issue estoppel

This surely cannot apply as the claim based upon the s.8 notice is a distinct claim/right to that based on the s.21 notice. If s.8 notice proceedings are dismissed on the merits there is clearly no bar to the landlord subsequently issuing s.21 proceedings, and vice versa.

Abuse of process

Although it is generally preferable to avoid multiple sets of proceedings, it would seem somewhat unreasonable to describe what happened as an ‘abuse’.

The landlord validly served the two different notices and issued proceedings at the earliest opportunity. The s.8 notice expired first so it was the obvious first choice for proceedings. Had the tenant not raised a defence at the initial hearing then possession would have been granted there and then; this first set of proceedings was entirely justified. It was only because of the tenant’s opposition to this claim that the accelerated possession claim was also necessary. This is an entirely reasonable belt-and-braces approach.

Conclusion

If it is possible and/or practicable to issue proceedings based on s.8 and s.21 notices at the same time then it is probably wise to do so to avoid this argument. However, if it necessary to issue separate proceedings there should be nothing to stop a landlord getting two distinct possession orders.

Richard Williams is a member of the 42BR Barristers Property Team, and specialises in aspects of Landlord & Tenant law.

This document is intended to give general information and does not constitute legal advice.

13th Mar 2017