A landlord has an ability to issue proceedings under Section 8 of the Housing Act 1988. Such proceedings are most commonly used in circumstances where there are i) rent arrears or ii) anti-social behaviour at the property.
However, the full list of both Mandatory Grounds (Grounds 1-8) and the Discretionary Grounds (Grounds 9-17) are found in Schedule 2 of the Housing Act 1988.
If the Claimant(s) are able to prove their case at the hearing based on a mandatory ground, the Judge will have to award possession. However, if the claim is based on a discretionary ground, it would be up to the Judge whether to award the possession order or not based on the evidence in front of them. It is therefore crucial that the documents provided to the Court prior to the hearing cover the necessary points to get the possession order.
The Claim Form and Particulars of Claim
To initiate the claim, the claimant(s) will need to prepare and file what is known as the Claim Form (Form N5) and the Particulars of Claim for rented Residential Premises (Form N119). It is common for Claimant(s) to also prepare and file witness statements in support of the claim setting out the background and the ground(s) which are being relied upon.
When they are prepared and signed, these documents are filed with the Court who then serve the same on the Defendant(s). Once served, the Defendant(s) are advised of the Court date for the hearing and also have an ability to submit a defence.
Witness Statement(s)
As set out above, it is common for Claimant(s) to file witness statements when filing the claim form and particulars of claim. However, it may also be important to provide further witness evidence in advance of the hearing date. Such further witness statements may include an updated schedule of arrears or provide further detail on why the particular ground is being relied upon. For example, there may have been further incidences of anti-social behaviour. It is imperative that the correct detailed evidence is before the Court prior to the hearing or there is a risk that it may be adjourned or, in the worst case, struck out.
Such witness statements will need to be both filed with the Court and served on the Defendant(s), usually 2-3 working days before the hearing date.
The Hearing
As with any claim brought under Section 8 of the Housing Act 1988, there will be a hearing that is called by the Court. The hearing is immaterial of the ground upon which the Claimant(s) relies.
It is not uncommon for the tenants to be either i) unrepresented ii) represented by charitable organisations such as shelter or iii) represented by solicitors on the day of the hearing without prior notification to the Claimant(s).
At the hearing, the Judge will review the papers that were filed by the Claimant(s) (that generally being the Claim Form, Particulars of Claim and supporting witness statement) and also hear submissions from both the Claimant(s) and the Defendant(s) or their representatives in attendance.
Should the mandatory ground(s) be made, then the Judge will give an order for possession. However, if there are any ambiguities with the paperwork, or if a valid defence is raised, then the Judge can either adjourn the hearing for a later date with further evidence to be provided or, in the alternative, dismiss the claim for possession and in some circumstances, adverse costs orders can be made against the Claimant(s).
Given the above, it would be our recommendation for experienced solicitors to be instructed to deal with the preparation and filing of the claim form, particulars of Claim and supporting Witness Statement. In addition, we would also advise an experienced advocate is instructed to attend any hearing given the likelihood of the tenant being able to obtain representation at the Court.
We offer fixed pricing for possession claims on the basis that they are undefended*.
If you need legal advice or assistance, please contact our Disputes and Litigation Team. You can reach us at 01752 388883 or email us at DisputeResolution@brightllp.co.uk.
* Should they become defended, then further costs can be incurred.
Disclaimer
This article is intended to provide general advice as it is a simplification of a complex area of law. This article must not be relied upon as a substitute for substantive, specific legal advice. Before you take any action, please do contact our Dispute Resolution Team. We will be able to advise what is appropriate for your particular circumstances.