Social landlords that wish to bring proceedings for residential possession based upon rent arrears will have to follow a new pre-action protocol that comes into effect today.
The protocol aims to encourage greater contact between landlords and tenants and it covers initial contact, what happens after the service of statutory notices, alternative dispute resolution and court proceedings.
Initial contact: If a tenant falls into arrears, the landlord has to contact the tenant as soon as reasonably possible to discuss the cause of the arrears and to agree an affordable sum for the tenant to pay towards the arrears. The landlord must also provide rent statements in a comprehensible format, on a quarterly basis, showing the rent due and the sums paid in the previous quarter. It must also ensure that the tenant understands the information.
If the landlord is aware that the tenant is under 18 or is particularly vulnerable, it should consider whether: the tenant has the mental capacity to defend the possession proceedings and a litigation friend should be appointed; any issues arise under the Disability Discrimination Act 1995; and, in the case of a local authority landlord, there is any need for a community care assessment.
The landlord should also assist the tenant in any claim that he or she may have for housing benefit, and if the tenant meets the appropriate criteria, the landlord should arrange for arrears to be paid by the Department for Work and Pensions from the tenant’s benefit.
The protocol also provides that a landlord should not start possession proceedings if the tenant applied for housing benefit.
Statutory notice: If a statutory notice is served, the landlord should make reasonable attempts to contact the tenant to discuss the arrears before issuing proceedings, and if they reach an agreement on the payment of the rent and arrears, it should postpone the proceedings.
Alternative dispute resolution: The parties should endeavour to resolve the issue by discussion and negotiation.
Court proceedings: If the parties do go to court, no later than 10 days prior to the hearing date, the landlord should provide the tenant with up-to-date rent statements and disclose any information regarding the tenant’s housing benefit position. The landlord also has to inform the tenant of the time and date of the hearing. If the parties reach an agreement after proceedings have been issued, the landlord should agree to postpone the court case as long as the tenant complies with the agreement.
Should the landlord fail to comply with the protocol, the court can impose sanctions, such as an order for costs, or, if the case was brought on discretionary grounds, the court can adjourn or dismiss the claim.
The protocol was drafted by the Civil Justice Council and can be viewed at: http://www.civiljusticecouncil.gov.uk/files/rent_arrears.pdf
References: EGi Legal News 02/10/06
