Commencing legal action

Guidance from the Pre-Action protocol under the Civil Procedure Rules states that possession proceedings for rent arrears should not be started against a tenant who can demonstrate circumstances given in the points below and a failure to adhere to this protocol is likely to result in an unsuccessful application to the Courts and as a consequence court costs that cannot be recovered;  

    • the tenant has provided the Local Authority or DWP with all the evidence required to process a Housing Benefit or Universal Credit claim  which would recover the arrear. If a resident is receiving UC direct, HOUSING 21 should proceed with issuing possession action.  
    • they have a reasonable expectation of being eligible for that Housing Benefit and  
    • they are paying other sums due which are not covered by Housing Benefit e.g. Utility Costs.  

The Scheme Manager/ Housing Manager remains responsible for monitoring the rent account and working with the resident locally to encourage and support payment and clearing any arrears  

Where the Notice has been served and there is no improvement in the arrears position the OM/ ECM will visit the resident and advise the next step will be to apply to the Courts to obtain possession (for leasehold, this is called Forfeiture). A Threat of Court letter should be issued to formally notify the resident of our intentions in the event that they do not pay. This Threat of Court again forms part of the pre-action protocol for possession action.Where the resident is able to clear the arrear or make a substantial payment off the arrears or there are exceptional circumstances (including issues of vulnerability) the OM/ ECM may decide to defer the decision to apply for possession whilst further investigation is carried out and/or support provided.  

  • Rented

    In cases where the OM/ECM is satisfied that applying to Court is the correct action the resident will be advised [in writing by Threat of Court and then after 14 days Notification of Court Application] of that decision and be made aware that an application for court costs will also be made which will be a minimum of £325 increasing with additional warrant fees currently £121 

  • Leasehold
    • Leasehold: In cases where the OM/ ECM is satisfied applying to the Court is the correct action, the resident will be advised [in writing and marked “Without Prejudice”] of that decision.  For leaseholders and shared owners reaching this stage the risk is significant because they may lose their home and any capital they have invested in it.  The OM should refer to Housing Law Services for support with a  pre-forfeiture letter. Care should be taken in relation to any action relating to forfeiture as inappropriate action on behalf of Housing 21 could mean that we have breached the lease rather than the resident(s) Forfeiture for leasehold or shared ownership properties differs from rent possession cases. If a right to forfeit arises such as non payment of service charges, Housing 21 must then follow a statutory notice procedure before the lease can be terminated. In relation to all breaches, apart from non-payment of rent, a s146 [1] notice must be served upon the current leaseholder/tenant, giving them time to remedy the breach in question. The notice must set out the breach complained and, if the breach is capable of remedy, contain a request to do so and/or pay monetary compensation. It is only following the service of this notice, and a subsequent failure by the tenant to remedy the breach within a reasonable or stated period and/or pay reasonable compensation, that a landlord can exercise its right to forfeit. 
    • Costs incurred may be able to be recovered from the leaseholder if this is included within the lease and we have successfully requested court costs within forfeiture proceedings.   
  • Rented and shared ownership

    The OM/ ECM will notify the Income Admin Team providing the necessary information and authorisation to apply for a Possession Claim on Line (PCOL). The Incoem Admin Team is responsible for administering the PCOL process.(Stage Four) and also adding court costs to a sub account once granted by the Judge. The Court Order is not discharged until all arrears and applied court costs have been paid.  

  • Leasehold

    Leasehold: The OM will liaise with the Housing Law Services to apply to the Court to seek Forfeiture of the lease.  (Stage 4)  

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