Oppression and the pre-action protocol for possession claims by social landlords
The issue of whether a possession order can be set aside on the basis of ‘oppression’ after an eviction has taken place where each of two joint defendants were not written to individually by the Claimant landlord, was considered in the County Court case of Home Group Limited v Jacqueline Emery and another .
Mrs Emery and her husband (Defendants) were joint assured tenants of the Claimant, Home Group Limited (Home Group).
Home Group commenced possession proceedings under Grounds 11 and 12 of Schedule 2 of the Housing Act 1988 for rent arrears. Mrs Emery's husband had attended the hearings and in May 2016, a possession Order was made.
On 2 August 2016, bailiffs attended the Defendants’ property and Mrs Emery immediately made an application to the County Court to set aside the possession order.
Mrs Emery argued she had no knowledge of the possession proceedings and the first she knew about this was when the bailiffs attended her property. Mrs Emery claimed that at no point had Home Group contacted her individually.
Home Group argued that the Defendants were joint tenants and the necessary court papers were sent to the property, in the name of the parties, and the current eviction should stand.
The Court’s power to stay, suspend and set aside possession orders is extinguished when a warrant has been executed, unless there has been:
- fraud; or
- the possession order itself is set aside.
Mrs Emery argued that oppression arose as Home Group had failed to comply with the Pre- action Protocol for Possession Claims by Social Landlords, where paragraph 2.1 states:
“The landlord should contact the tenant as soon as reasonably possible if the tenant falls into arrears… Where contact is by letter, the landlord should write separately to each named tenant.”
CPR 39.3 further states that a party who fails to attend a hearing may apply to set aside an order if they acted promptly. Mrs Emery argued that she acted promptly as she made an application to set aside the possession order as soon as she was made aware of it, which in this case, was at the time of the eviction.
The Judge accepted that Mrs Emery was not aware of the proceedings until the eviction, and she had acted promptly. The Judge also held that Home Group failed to write to each tenant separately, as required by the pre-action protocol.
Consequently, the warrant and possession order were set aside, and a suspended possession order was made on terms.
This is a County Court decision, and therefore not binding. However, the case dealt with an important example of what amounted to oppression, and highlighted the importance of writing to each joint tenant separately before issuing proceedings. In addition when issuing proceedings enough copies should be sent to the court so that each defendant can be served.