24 July 2019 | Comment | Article by Rebecca Rees

Second and subsequent possession claims. Can you issue afresh?

Here is a scenario very familiar to those dealing with rent recovery:

A landlord successfully obtains a possession order which is suspended or postponed – normally on grounds that the tenant must pay the rent arrears (although it may also be suspended on condition the tenant complies with other terms of the tenancy). Years go by, the order may be revisited from time to time if the tenant doesn’t comply. The tenant is in breach again.

So the question is, is the landlord obliged to make an application for a date for possession under those same proceedings or can it issue afresh? The Court of Appeal had to look at this question in March in the case of Salix Homes v Graciano Mantato [2019] EWCA Civ 445.

The facts

The original possession order was made in 2009 when the landlord was the local authority. Possession was postponed on condition the Defendant paid rent and made a contribution towards the arrears. He failed to comply and several more possession orders were made over subsequent years. Upon stock transfer in 2015, the tenancy became an assured tenancy. The Defendant never cleared the entirety of the judgment debt under the original judgment and so the original possession order was never discharged.

The new landlord issued fresh proceedings as a result of which the Defendant was ultimately evicted (having not defended the claim or attended court). The Defendant then made an application to set aside the new possession order, on the basis that the issue of the second set of proceedings was an abuse of process by the landlord because the original possession order was undischarged. At first instance he succeeded and the court ordered that he should be readmitted.

The decision

The Court of Appeal said that the judge’s reasoning was wrong. The courts will not allow a party to issue fresh proceedings which relate to something which has already been dealt with by the court. So, landlords do need to be very careful issuing fresh proceedings when there is already an order in place. However, the fact that the tenancy had changed its status (and there was a different landlord), the fact that the arrears in the second claim was a different cause of action to the arrears which led to the first possession order, and the fact that the original warrant had expired meant that it was not an abuse of process to issue fresh proceedings.

Our thoughts

The case does serve as a warning as the change of the nature of the tenancy made a key part of the court’s reasoning. If this had not occurred, the case may have been more difficult to argue.

The Court of Appeal was also critical of the landlord’s failure to notify the court on the second occasion of the existence of the first set of proceedings.

Where a possession order has been discharged – i.e. in a rent claim by the tenant clearing the arrears (and costs if those are included in the possession order) - at some point since the order was made, it will not be possible to make an application in those proceedings and new proceedings must be issued. However, where the order has not been discharged the proper course will normally be to make an application in the existing proceedings, even if they are very old.

Bear in mind that permission will be needed for the issue of a warrant where the order is more than six years old (but the fact that re-issuing may be an abuse of process will likely be a good ground for possession to be granted).

Where there are new grounds for possession – for example where anti-social behaviour issues have arisen in a case where there is already a rent possession order – there is a different cause of action. So, the same concern does not necessarily apply. However, it is undesirable to have separate possession orders in relation to the same property so normally the right course is to make an application in the existing claim.

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Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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