Promises, promises

A sad county court case that raises questions over the way in which some housing associations approach ground 8 possession claims and evictions.

Christian Action (Enfield) Housing Association Ltd v L Walters, Edmonton County Court, 7 December 2015 (Not published, we’ve seen a transcript of judgment).

Ms W was CA’s assured tenant. Her rent was paid by HB. In November 2014, Ms W became a student. She said that she told CA of this and that rent would be paid quarterly, when she received her grant payments. Arrears built up but were paid off in January 2015. However arrears then built up again (Ms W paying quarterly). CA issued proceedings and in April 2015 a possession order was made under Ground 8. Possession was delayed for the maximum 6 weeks. In July 2015, CA applied for and got a warrant, with an eviction date of 2 September 2015.

On 13 August 2015, CA wrote to Ms W, stating unequivocally that she could avoid eviction by paying off the arrears.  Ms W said that in a subsequent phone call to CA she was given an arrears figure of £780.90. This she paid before the eviction date (it later transpired that the amount was a few pounds short, but no particular issue was raised about the accuracy of Ms W’s account of the call).

Despite this, Ms W was evicted on 2 September.

Ms W made a without notice application on the same day, seeking re-entry. She was in person and a housing officer appeared for CA. The application was adjourned for full hearing, apparently with re-entry ordered on an interim basis, and the judgment records the Judge’s thoughts at that stage:

I was conscious of the decision in Jepson Homes v Moisejevs [2001] 2 All ER 901 and, in fact, referred to that decision that day.  However, I had in mind that it was possible that the defendant might legitimately argue one of two courses:  Firstly that a promissory estoppel had arisen such as the claimants were no longer entitled to rely upon the court order which they had obtained and would not so be able to rely upon that order and thus would have to take fresh proceedings to obtain possession from the Defendant. In terms that the indications from the claimant were inconsistent with an order made on mandatory ground.  Alternatively, I speculated that it was possible to argue that a new tenancy had come into being.

However, a different judge ended up hearing the application, by this point cast as an application to set aside the warrant, and it was dismissed. It is unclear how it was argued.

CA then applied for a warrant of restitution (effectively a further warrant based on the possession order) and Ms W, now represented, defended that application, on grounds of abuse of process and oppression. She argued

there is plain oppression on the part of the claimants in the way in which they handled the execution of the warrant for possession, the kernel of his argument being that they indicated to the defendant on a number of occasions that if she took certain steps, then she could avoid the warrant being executed, that she did everything that could be requested of her, including paying off the amount that she had been told was the arrears, and it is plainly unconscionable for the warrant now to stand. 

Against this CA pointed that the possession order, on mandatory grounds, stood and

this court is precluded by s.89(1) from staying possession for a period in excess of six weeks. So, she says whilst the claimants’ conduct might have caused the raising of some judicial eyebrows, that does not detract from the basic legal framework. 

The court, reluctantly, concurred with CA, at least on the arguments advanced by the parties:

I harbour considerable doubts about whether it was right for the claimant to adopt a procedure that was inconsistent with their correspondence and which had raised in the mind of the defendant a legitimate expectation that she could avoid the execution of the warrant.  I have to say that if an argument had been advanced not of oppression but of an estoppel then I might well have been minded to list this matter for a further consideration with proper arguments before the court.  That has not been the approach of the defendant who has rested on the oppression and by necessary analogy of whether I should stay a warrant for restitution. […]

I have come to the conclusion that it would be inappropriate for me to stay or discharge the warrant of restitution and with something of a heavy heart I have come to the conclusion that I must dismiss the application to stay the warrant of restitution.

No order as to costs.

The Judge went on to say:

I do, however, conclude this judgment by urging the claimant to look at the world through the eyes of their tenants, to consider with their lawyers whether their procedures are open and transparent enough as to prevent the sort of situation that has emerged in this case.

Comment

It is a pity that arguments on estoppel and new tenancy were not raised. I am not sure that promissory estoppel would have got much further – facing the same issue of a possession order made on mandatory grounds – but grant of new tenancy may have had some traction.

However, what this case does illustrate is the ongoing issues of housing associations using ground 8 as a debt collection mechanism. The deeply unattractive behaviour here is in saying (as is routinely said, in my anecdotal experience) that a warrant won’t be enforced if all arrears are paid, then going ahead with an eviction despite payment.

But seeking possession on a mandatory ground inevitably restricts both the landlord’s and the tenant’s ability to resolve the situation, and imposes the crude absolutism of the mandatory ground conditions on situations (like this one) where a degree of flexibility would be merited – this was not a tenant unable or unwilling to pay.

Lastly, we should note that CA persisted in seeking a further warrant despite arrears having been cleared in response to its promise. While within its strict legal rights (arguments over new tenancy aside), there are clear questions over this course of conduct as a matter of policy, procedure and administration.

 

 

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Housing law - All, Possession.

2 Comments

  1. I have had some success in these type of cases (mostly Introductory tenancies) in persuading the Housing Authority that the likelihood of their ever getting the arrears paid back is by not enforcing the possession order and that, if evicted, the tenant will most likely seek a Debt Relief Order so as not to jeopardise their housing register status. Not a legal remedy to eviction but may give rise to one in the future if they seek to enforce at a later date.

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