Wednesday, March 01, 2006

Tie the Judge down with a mandatory ground

I always say that you should only ever apply for a possession order if you have a mandatory ground, but it is only when you see what can happen if you don't, that you realise how very important it is.

What do I mean? When you go to court for a possession order, your claim has to be based on a legal ground (or reason). There are two types, discretionary and mandatory. As you would imagine, a discretionary ground is where the Judge does not have to make an order if he does not think it right. So if you want certainty, go for the mandatory ground.

However there is another reason. If you have a discretionary ground, even if he grants you an order for possession, the judge can put off the date when the tenant is supposed to go (called a stay or suspension), for as long as he considers fit. But if the order is based on a mandatory ground he cannot delay the possession date by more than six weeks.

You can see the sort of thing that can happen by looking at some of the claims made against social tenants where mandatory grounds are not available. In a recent case involving a tenant with a bad history of rent arrears (Richardson -v- Ealing London Borough Council [2005]) , eight attempts (eight!) were made by the Council to send in the bailiffs, and every time the tenant had been able to persuade the Judge to grant another stay. On the ninth occasion the Council decided that enough is enough, and appealed the decision to grant yet another stay. However the Court of Appeal upheld the original decision saying that although it was very generous, the decision was not outside the ambit of District Judge’s discretion. The Council officers must have been tearing their hair out!

Moral – Judges do not like evicting tenants, and the only way to be sure to get them out is to use a mandatory ground where the Judges hands are tied.

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1 comment:

contact said...

For some social landlords, the Housing Associations, mandatory grounds are available, particularly the rather nasty ground 8. Given the general level of competence of Housing Benefit, 8 weeks arrears at date of issue and at date of hearing is all too possible on the basis of HB cock-up.

Now Local Authority housing stock has been transferred on a huge scale to Housing Associations, this is a real threat to vulnerable tenants.