Now that the new pre-action protocols are sort of available, and have been in force since 6 April 2015 even when they were not available, people are having a look at them. And coming up with some issues.
The new Pre-action Protocol for Possession Claims by Social Landlords, (at page 108 on in this PDF, which is all we have for now), has caused head scratching. Parts 1.1 to 1.3, on the scope and application of the Protocol read as follows:
1.1. This Protocol applies to residential possession claims by social landlords (such as local authorities, Registered Social Landlords and Housing Action Trusts) and private registered providers of social housing. Part 2 relates to claims which are based solely on claims for rent arrears. Part 3 relates to claims where the Court’s discretion to postpone possession is limited by s89(1) Housing Act 1980. The protocol does not apply to claims in respect of long leases or to claims for possession where there is no security of tenure.
1.2. Part 3 of the protocol does not apply to cases brought by social landlords solely on grounds where if the case is proved, there is a restriction on the Court’s discretion on making an order for possession and/or to which s89 Housing Act 1980 applies.
Part 2 is straightforward enough, being by and large the old rent arrears protocol. But then at Part 3, under 3,1, is this.
3.1 This part applies in cases where if a social landlord proves its case, there is a restriction on the Court’s discretion on making an order for possession and/or to which s. 89 Housing Act 1980 applies (e.g. non-secure tenancies, unlawful occupiers, succession claims, and severing of joint tenancies).
So what kinds of claim does Part 3 apply to?
1.1 seems to be straightforward about it – Part 3 covers claims where the Court’s discretion to postpone possession is limited by s.89(1) Housing Act 1980. This would cover any ‘mandatory’ possession order, including those in Schedule 2 Housing Act 1988, and indeed a claim via section 21. But it would seem to exclude ‘Notice to Quit’ cases, where there was no security of tenure, or security had been lost, as “The protocol does not apply to claims in respect of long leases or to claims for possession where there is no security of tenure”.
But then 1.2 says Part 3 does not apply where the case is brought “solely on grounds where if the case is proved, there is a restriction on the Court’s discretion on making an order for possession and/or to which s.89 Housing Act 1980 applies”.
So if a claim is brought solely on Ground 8 Housing Act 1988, (or indeed, s.21, or introductory or demoted tenancy claims) Part 3 would not apply?
But if it was a rent arrears claim brought on grounds 8, 10 and 11, Part 3 would apply, as the s.89(1) HA 1980 limit would apply if the court made a mandatory order under the ground 8 claim, but the claim is not solely on that ground?
What is more, 1.2 seems to be in direct contradiction to 3.1, which gives as examples of where Part 3 applies exactly the kind of case where the claim is brought solely on grounds that if proved would result in the s.89(1) limit on discretion applying – non-secure tenancies, unlawful occupiers, unsuccessful successions, and ‘severing of joint tenancies’ (which I take to mean NTQ by one joint tenant and possession claim against the remaining occupier).
Except that the kinds of cases listed as examples in 3.1 all seem to be cases where “there is no security of tenure” (or at least allegedly no security) and based on Notices to Quit. And 1.1 says the protocol does not apply “to claims for possession where there is no security of tenure”.
Am I missing an obvious interpretation? I did rather wonder if 1.2 actually meant to refer to Part 2, not Part 3, which would sort of make sense But then then would exclude possession claims based solely on ground 8 HA 1988 from the rent arrears pre action protocol in part 2. And it still wouldn’t solve the ‘no security of tenure’ issue between 1.1 and 3.1.
My head hurts.