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Welcome to this, the ninth bulletin from the Housing Team.
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Possession orders relating to secure tenancies are enforced when the landlord issues and executes a warrant of possession. The tenant has the right, at any time before the warrant is executed, to apply for it to be suspended (usually on terms, e.g. repayment of rent arrears at a specified rate).
After execution of the warrant, it is still possible for the tenant to seek an order compelling the landlord to let them back into the property. The Court will only make such an order if:
The Court of Appeal has described oppression as “the insistence by a public authority on its strict rights in circumstances which make that insistence manifestly unfair”. The use of court procedures that are lawfully available to a landlord cannot in itself amount to oppression – there must be an element of manifest unfairness in how they are used: Southwark LBC v Sarfo (2000) 32 HLR 602 (CA).
First, tenants should be given adequate notice of the impending eviction:
Secondly, landlords must not actively mislead tenants as to their legal rights:
The law is less clear where the tenant does not ask how they can stop the eviction, but the landlord takes no active steps to inform them of their rights. It seems to be common practice for the Notice of Eviction to refer to the option of a stay application, so arguably tenants should already be aware of this (provided that they receive the Notice). Until the courts decide the point either way, however, landlords may wish to err on the side of caution by giving tenants the information in writing whenever a warrant is issued.
Finally, where the landlord is a local authority (not a housing association), housing officers should be aware of any ongoing Housing Benefit issues:
The Sarfo case also illustrates that tenants are expected to act promptly. The Court of Appeal did not actually order re-entry because the tenant had applied for re-entry several months after the eviction, by which time her block had been demolished. The same reasoning would apply where the property has already been re-let.
Housing lawyers who are faced with a re-entry application should first assess whether the tenant’s allegations could arguably amount to oppression or abuse of process. If so, but the factual account is disputed by the landlord’s housing officer, directions should be made for a fact-finding hearing. It will rarely be appropriate for the Court to accept the tenant’s assertions at face value without hearing evidence on oath and giving the landlord an opportunity to challenge it. In the interim, the Court will usually order that the landlord is not to re-let the property.
If a re-entry application is successful, the warrant will be set aside. The tenancy is treated as never having been terminated. However, that is not the end of the matter. The landlord is still entitled to issue a fresh warrant, provided that this time round the failings which led to the re-entry order are avoided.
Stefan Liberadzki is a member of the 42 Bedford Row Property Team and specialises in all aspects of Housing La