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14/06/2010

Re-entry and re-opening: updates from Legal Action

June’s Legal Action housing updates have a bumper collection of interesting county court cases, as you’ll already know. For our archives, this is the first of a couple of posts. This one deals with cases on post-eviction re-entry and on re-opening possession proceedings, including an LB Croydon case that very nearly merited a naughty step post of its own.

Croydon LBC v Mensah-Bonsu, Croydon County Court 15/03/2010
Ms Mensah-Bonsu was Croydon’s secure tenant. In August 2009 a suspended possession order was made on terms of rent plaus £21.60 per month. Ms M-B complied until December 2009, when she missed a payment due to ill health. She contacted Croydon offering to pay double in february 2010. Croydon rejected the offer on 19 January, then sent several contradictory demands for payment. Ms M-B made the January payment. On 1 February Croydon applied for a warrant. On 5 February Ms M-B made the double payment. A final letter from Croydon said she was required to pay £177.96 immediately and if she did so, the eviction would be cancelled. Ms M-B borrowed and paid over £178. The eviction went ahead. Ms M-B applied for re-instatement.

In its evidence, Croydon completely ignored the final letter. The witness, an income officer, failed to turn up to the hearing. Th eapplication was allowed. The DJ was deeply unimpressed by the failure of the witness to turn up and even more so with Croydon’s failure in any of its letters to inform Ms M-B that she could apply to stay or suspend the warrant, an ommission the judge described as ‘very worrying’.

I think we can go a little further than that and describe Croydon’s behaviour as frankly appalling and, in view of the promise in that last letter, with which Ms M-B had complied, pursuing the eviction as tantamount to an abuse of process. Good work by Merton Law Centre there.

Manchester City Council v Trayers, Manchester County Court 02/02/2010
This was an application by Manchester to re-open possession proceedings after judgment. Manchester had brought proceedings against Ms Trayers, a secure tenant, on the grounds of rent arrears and anti-social behaviour. Ms T had received a caution for possession of drugs at a pub in the area. The allegations against Ms T were reduced before hearing in July 2009, when live evidence was heard. Judgment was then reserved until 3 September 2009. The Recorder’s judgment handed down contained a direction that the parties propose agreed terms for a suspended possession order.

Manchester applied to re-open proceedings on the basis that one of Ms T’s sons had been found guilty of two criminal offences after the hearing of the claim and that this constituted a pattern of behaviour which had not got better, but worsened. For this reason Ms T would enjoy an advantage due to the delay in the judgment.

The Recorder dismissed the application. Robinson v Fernsby [2003] EWCA Civ 1820 meant that such applications should only be made in exceptional circumstances. Although there had been some delay, the judgment was final, albeit that terms of the SPO and costs orders were to be agreed. The conviction of one son after hearing but before judgment was not an exceptional circumstance. It was open to Manchester to make a further application to enforce the order, but not to re-open proceedings.

I wonder about this. Could Manchester seek to enforce the terms of an SPO based on a breach prior to the final order and therefore the terms being made? If not, one could see Manchester’s point in seeking to re-open proceedings. However, given the delay and further evidential requirements in doing so, perhaps enforcement would be a better and quicker bet.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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