Injunctions preventing possession?
The question of whether an injunction preventing an eviction could affect a landlord’s ability to commence possession proceedings was considered by the High Court in Brown v Tyndale (2019) QBD.
The case concerned an application by the landlord to set aside an injunction obtained by his tenant, which prevented the landlord from evicting or removing the tenant. In response, the tenant made an application to adjourn this hearing.
By way of background, the tenant had obtained a without notice injunction preventing the landlord from evicting him from his property, following the landlord’s attempt to remove the tenant’s possessions and change the locks, as the landlord had not obtained a possession order to do so. The landlord was not present at the return date hearing, claiming that he had not been served with notice of this hearing by the tenant. Consequently, the landlord made an application to set aside the injunction order and claimed that he wanted to issue possession proceedings. In response, the tenant applied to adjourn the matter so that he could instruct Counsel.
The matter was heard by Robert Francis QC. On the point of the adjournment, the court refused the tenant’s application as the tenant was aware of the hearing and had the opportunity to obtain legal advice. In addition, the court did not feel that the tenant was prejudiced by not having Counsel representing him at this hearing as he had conducted himself well.
In respect of the injunction, the fact that an injunction was in place did not prevent the landlord from commencing possession proceedings. The court therefore varied the existing injunction on terms that the order would not prevent the landlord from pursuing possession of the premises or issuing possession proceedings and that the tenant would pay £800 per month whilst he was in occupation of the property.
There was also an issue in respect of whether the tenant had occupied the property under an assured shorthold tenancy. The Court concluded that this point could not be dealt with at the hearing due to a lack of evidence. The matter was subsequently transferred to the County Court.
It is important to note that both parties were unrepresented during these proceedings and there is an argument that proceedings should have been commenced in the County Court.
It is clear from the court’s approach that not setting aside the injunction would no doubt have prevented the landlord from attempting to evict the tenant from the property without going through the proper court process.
The case clearly reinforces to landlords, particularly those that have not sought legal advice, the importance of going through the appropriate court procedures when obtaining possession of a property.