Halloween may be over, but housing law can still be very scary.
It is a sad fact of an economy that is suffering a downturn that insolvency and possession proceedings are on the increase.
Which means that our phones are ringing off the hook with landlords and tenants wanting legal advice on how to navigate their way around the court system.
As the initial process is quite straight forward, many landlords elect to serve their own notice to quit and issue their own possession proceedings.
It’s also common for tenants to defend the proceedings in person, perhaps not only to save money. Sometimes it is because they believe (not unreasonably) that they will get more support and sympathy from a Judge if they turn up on their own to plead their case, which can often include details of personal woes such as illness (both physical and mental) and dependent children.
Although many Judges are sympathetic, their sympathy goes both ways. Many tenants are in difficulties, but so are many landlords. It’s easy to see landlords as people with deep enough pockets to weather the storm, but in my experience this is far from true. With rising interest rates and the stay on possession proceedings during COVID, many landlords are able to show that they are in just as much if not more difficulty than their tenants are, and that allowing a tenant to remain in occupation without paying rent will end up with the property being repossessed because they cannot pay their mortgage.
An interesting strategy that I’ve seen tenants employ recently is to go to court hoping to get support from the Judge, but if that doesn’t work, they immediately lodge an appeal, believing that this will automatically buy them some more time. There are two problems with this. Firstly, an application for an appeal doesn’t automatically give you a stay – you have to remember to ask for this as well, and to ensure that the court considers the stay immediately. If they simply list your application for an appeal (which might not be heard for some months) simply the fact that it has been listed for a hearing doesn’t automatically give you protection from eviction. Many bailiffs will be reluctant to evict someone where they know an appeal is pending, but you cannot take this for granted. Secondly, even if your application for a stay is heard immediately, the Judge must consider the prejudice to BOTH sides before granting the stay, and if both sides will be prejudiced by a decision, the court will consider the merits of the case. Put simply, if your appeal has little prospect of success, the stay will not be granted, and you will have wasted your time and money.
In my experience, tenants who find themselves in this position rarely have the money to waste on opposing possession proceedings. Even if they are doing the hearing themselves, there will still be costs, even if it is just court fees and time off work. If so, they might be better off not opposing the landlord, being served with a possession order and getting the council to rehouse them until they can get back on their feet.
Kleyman & Co Solicitors. The full service law firm. At home in any kind of court proceedings.