Housing Law Bulletin No 9 – Regaining entry after a warrant has been executed

Welcome to this, the ninth bulletin from the Housing Team.

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When can the Court compel social landlords to re-admit a tenant after a warrant of possession has been executed?

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 original possession order is set aside;
• The warrant was obtained by fraud; or
• The way in which the warrant was obtained or executed amounts to oppression or abuse of process (the terms can be used interchangeably in this context).

What is “oppression”?

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).

What does this mean in practice?

First, tenants should be given adequate notice of the impending eviction:

• This does not necessarily mean informing them that the landlord is considering issuing a warrant, but once one is issued it should be brought to the tenant’s attention as soon as possible and through whatever means are appropriate;
• In Saint v Barking & Dagenham LBC (1999) 31 HLR 620 (CA), the Council was held to have acted oppressively by obtaining and executing the warrant while the tenant was in prison on remand;
• In that case the Notice of Eviction was sent only to the tenant’s flat, even though he had informed the Council of his detention. He only learned that he had been evicted upon his release from prison some three months later.

Secondly, landlords must not actively mislead tenants as to their legal rights:

• If a tenant asks what they can do about an impending eviction, they must be advised of their right to apply to Court for a stay of the warrant.
• In Lambeth LBC v Hughes (2001) 33 HLR 350 (CA) the tenant had been told by a housing officer, after the warrant was issued, that the “only way” to stop the eviction was by clearing all the arrears. That statement was oppressive because it led the tenant not to make a stay application.
• However, housing officers can still make clear that they will oppose any application unless the arrears are cleared or reduced to a certain level, provided the tenant is not given the impression that they “cannot” apply to the Court.

A duty to inform?

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:

• In the Sarfo case referred to above, Southwark LBC was found to have acted oppressively by failing to process three separate Housing Benefit applications before it issued the warrant.
• Had any one of the applications been processed properly, the tenant’s arrears would have been reduced to the extent that the Court would have stayed the warrant.

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.

Conclusion

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 42BR Barristers Property Team and specialises in all aspects of Housing La

Stefan Liberadzki

Call 2013