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Courts permission required before applying for a warrant if a Suspended Possession Order is breached

To enforce a Suspended Possession Order (SPO), landlords must first apply for and obtain the Courts permission under Rule 83.2;

courts-permission-required-before-applying-for-a-warrant-if-a-suspended-possession-order-is-breached_swain-co-housing-law-solicitors

The Court of Appeal has recently ruled in the case of Cardiff County Council v Lee [2016] EWCA Civ 1034 that residential landlords must apply for the Courts permission pursuant to Civil Procedure Rule 83.2 before being able to apply for an eviction warrant if a Suspended Possession Order is breached.

Essentially, in March 2013 Cardiff County Council commenced possession proceedings for Anti-social behaviour against Mr Lee and a Suspended Possession Order was obtained with the right to possession suspended for 2 years.

Following further complaints of anti-social behaviour, the Council issued a request for a warrant for possession (Form N325) and sought an eviction date. A date was set but Mr Lee applied to stay the warrant. The District Judge dismissed this so Mr Lee appealed.

On appeal, a Circuit Judge ruled the Council had not followed the correct procedure as it had failed to apply to the Court for permission before issuing the warrant.

The decision was based on CPR 83.2(3)(e) which provides that a warrant for possession cannot be issued without the court’s permission where under the Order or Judgement: -

“Any person is entitled to a remedy subject to the fulfilment of any condition, and it is alleged that the condition has been fulfilled.”

The Court held that this Rule applied to enforcement of a SPO, meaning issuing a warrant for possession following a breach of a SPO without first having obtained the court’s permission to do so is unlawful.

County Courts could exercise their discretion under Rule 3.10 to excuse the landlords failure to seek possession

Despite the Council not applying for permission, the High Court excused this error and relied on CPR Rule 3.10 which allows the Court the discretion to excuse technical procedural error. Mr Lee appealed to the Court of Appeal.

Appeal Judges accepted Rule 83.2 applied and permission was needed but agreed with the High Court that the Court has the discretion to rely on Rule 3.10.

Essentially, the County Court could at the tenants stay application hearing rely on Rule 3.10 and give permission for the warrant application to be approved.

However, it appears from the wording of Lady Arden’s Judgement that for the Courts to retrospectively remedy the application for permission, it needs to be considered whether: -

  • The application was a genuine error; and
  • Has the court subsequently seen sufficient evidence of the breach

In Judgement Lady Arden acknowledges “CPR 83.2 constitutes an important protection for tenants and is not to be taken lightly. Social landlords must ensure that from now on their systems are such that the same mistake will not be made in the future.”

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