Suspended Possession Orders – Permission to apply for a warrant

Suspended Possession Orders – Permission to apply for a warrant

Suspended Possession Order – SPO

If you are about to enforce a Suspended Possession Order (“SPO”) it is vital that you are aware that you are now required to obtain permission to enforce before applying for a warrant.

Cardiff County Council v Lee (Flowers) (2016)

In the recent decision in Cardiff County Council v Lee (Flowers) (2016), which was heard in the Court of Appeal on 19 October 2016 and reported on 21 October 2016, the Court of Appeal held that Civil Procedure Rule (CPR) 83.2 provides important protection for tenants. The Court made it clear that landlords who are considering applying for a warrant following a Defendant/tenant’s breach of an SPO should first ensure that permission to apply for the warrant is obtained from the Court.

This decision will have a huge impact on a landlord’s ability to execute a warrant against a Defendant/tenant who has breached an SPO. Not only does it add an extra layer of bureaucracy to the already lengthy process but it will cause:

  • additional work in drafting the application and any accompanying witness statement, and attending any subsequent hearings;
  • additional costs, particularly with the ever increasing Court fees;
  • further delay to the process of successfully evicting a tenant.

Making an application for permission

In order to enforce a breached SPO and to comply with CPR 83.2 a landlord must first make an application for permission to the County Court. The application made on Form N244 (with the accompanying fee) must include the following information (either in the body of the application or in an accompanying witness statement):

  • Identify the judgement or order to which the application relates;
  • Give any other such information as is necessary to satisfy the Court that you are entitled to proceed to execution of the judgement or order;
  • If the SPO relates to the payment of money (e.g. in the case of an SPO based on rent arrears) you will also need to ensure that your application for permission to the Court states the amount originally due under the judgement or order and, if different, the amount due at the date of the application.

It is important to note that the CPR allows for applications for permission to be made without notice to the Defendant/tenant. We therefore suggest that any applications are made without notice in order to keep the Court fees as low as possible; without notice applications to the County Court currently incur a fee of £100 whereas on notice applications incur a fee of £255.

Warrants applied for pre-21 October 2016 (but not yet enforced)

If you have already made an application for a warrant based on the Defendant/tenant’s breach of an SPO without first obtaining the Court’s permission it could result in the warrant being set aside and the Defendant/tenant being able to return to the property. In light of this we suggest that you immediately make an urgent application to the Court as detailed above.

If, however, the Defendant/tenant has a pending stay application, rather than making an urgent application for permission we suggest that at the stay hearing you request that the Court uses its powers under CPR 3.10 to make an order stating that the error does not invalidate the application made.

Considerations going forward

You may think that it would be possible to obtain permission ‘upfront’ at the time that you are granted your SPO, and in theory this may be a possibility.  However CPR 83.2(7A) says that once you obtain permission from the Court you must make an application for a warrant on Form N325 (with the current fee of £121) within 1 year. If you fail to apply for a warrant within this time you will need to obtain a new permission order from the Court.  So even if the Court were prepared to grant you permission upfront when it made the SPO, you could only rely upon such permission if there was a breach in the first year.  Then you would have to obtain a fresh permission order.

As you are aware, some Defendants/tenants successfully make stay applications on numerous occasions. Where this is the case in order to avoid having to make a new application for permission every year you should ensure that at each stay application you request that permission pursuant to CPR 83.2 is given, this will help to avoid further costs and delays going forward.

The Court of Appeal stated in Cardiff County Council v Lee that it hoped that the CPR committee would consider whether any amendment could be made to Form N235 to make it clear that there were some cases where permission would need to be sought first. We currently await a further update from the committee.

Outright Possession Orders

One piece of good news – the requirement to seek permission before applying for a warrant does NOT apply to cases where you have an outright order for possession.

If you have any further queries, please do not hesitate to contact our team on 01753 876800 or caroline.cowley@owenwhite.com.

21 October 2016