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Oppression and the Pre-action Protocol for Social Landlords when a joint tenant is in rent arrears

A joint tenancy is when more than one person signs a single tenancy agreement. All names on the joint tenancy are liable jointly and individually for any rent arrears. 

Before issuing any Court proceedings for rent arrears, social landlords have to follow a ‘Pre-action Protocol’ which is a document providing guidance and good advice that should be followed before court action is taken against the tenant. 

A recent case in the County Court highlighted the importance of the Protocol and in particular, Paragraph 2.1. Whilst not a binding case, it raises the issue of what might amount to oppression in obtaining a possession order via the rent arrears section of the pre action protocol for possession by social landlords. 

Paragraph 2.1 of the Protocol: The landlord should contact the tenant as soon as reasonably possible if the tenant falls into arrears to discuss the cause of the arrears, the tenant's financial circumstances, the tenant’s entitlement to benefits and repayment of the arrears. Where contact is by letter, the landlord should write separately to each named tenant.

Essentially in the case of Home Group Limited v Jacqueline Emery & anor, the tenants were husband and wife, Mr and Mrs E and joint tenants. A possession claim was brought on grounds of rent arrears by their social landlord Home Group.

The possession proceedings had allegedly been attended across various hearings solely by Mr E when a possession order was eventually made. Bailiffs attended the property which was the first time Mrs E had been aware of the proceedings and the situation regarding rent arrears.

The court has a power to stay, suspend and set aside possession orders. This is extinguished when a warrant has been executed apart from evidence of the following:

1) Oppression
2) Fraud
3) The possession order itself is set aside.

Mrs E made an application to set aside the possession order and argued that oppression in this case arose because the landlord had failed to comply with the Pre-action protocol, Paragraph 2.1, as the landlord had failed to write to each tenant individually. Home Group argued this was unnecessary as they were joint tenants.

If a separate letter had been sent to Mrs E as recommend by the protocol, she would have been aware of the rent arrears and the landlord would have been aware of Mr E’s control.

The court accepted that Mrs E had not been aware of the situation, had reasonable prospects of success and had acted promptly thereafter in accordance with CPR 39.3.5.

On the issue of oppression, the court accepted that the pre action protocol on rent arrears required contact by letter to be to each named tenant and that this had not been done, and that bringing possession proceedings on the back of this failure amounted to oppression as an unfair reliance on strict legal rights.

The court ordered the warrant and possession order be set aside and a suspended possession order was made on terms.

The link to the protocol can be found here.

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