BLACKS SOLICITORS: Do you have permission?
In residential tenancies, the landlord usually has the right to re-gain possession of the property if there has been a serious breach of the tenancy agreement by the tenant. In order to obtain possession the landlord has to apply to the court for a possession order. In some cases, the court might give the tenant a second chance by granting the order but suspending it on the condition that there are no further breaches by the tenant. If there are further breaches the landlord can then apply to the court for a warrant of possession in order to enforce the possession order.
Previously, the usual practice adopted by landlords was simply to lodge the warrant with the court together with the appropriate fee and thereafter carry out the eviction on a date set by the court. However, the recent case of Cardiff County Council v Lee (Flowers) has shown that procedure to be incorrect.
In that case, Mr Flowers was subject to a suspended possession order in favour of his landlord, Cardiff County Council, following the breach of his tenancy. The council applied for and was granted a warrant of possession by the court. However, Mr Flowers argued that the council could not simply apply for the warrant but needed to seek permission from the court beforehand and that therefore the warrant was invalid.
At first instance, the District Judge held that permission was not required. Mr Flowers therefore appealed. The Circuit Judge agreed that permission was required but he decided that the warrant was not invalid because the court could and did waive the council’s breach. Mr Flowers appealed to the Court of Appeal. The Court of Appeal decided that where a landlord wishes to apply for a warrant of possession he must first make an application to the court explaining the breach and asking for permission to enforce the possession order.
Landlords who are seeking possession following the breach of a suspended possession order should therefore ensure that they make the necessary application to the court seeking permission to enforce the possession order before applying for the warrant of possession. Once permission has been granted by the court the landlord is then entitled to apply for the warrant.
For landlords this is another procedural hurdle which they will need to clear before they can recover their property. For tenants this represents another layer of protection as the application for the warrant would be subject to judicial scrutiny before it is granted.
If you are involved in any dispute concerning a lease or a tenancy agreement then the Property Litigation Team at Blacks Solicitors can assist. Please contact Luke Patel on 0113 227 9316 or email him at “LPatel@LawBlacks.com”.