Suspension of Eviction - possible?

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    Suspension of Eviction - possible?

    Good afternoon all,
    My situation is this:
    There is an Execution of Warrant of Possession set for Wednesday September 10th, after the Possession Order was set for August 14th. I have just heard, this morning, that the tenant has applied for a Suspension of Eviction on the basis she has an 8 year old daughter, she is 4 months pregnant and the Council have offered her a house which is not ready to be moved into and not even an estimated date for when it will be ready.

    I didn't renew her AST on May 24th because I have had numerous threats of prosecution under the Prevention of Damage by Pests Act and the Environmental Protection Act from the council due to the behaviour of the tenant.
    The house itself now needs plenty of work doing on it and she has obstructed all attempts to gain access for any repair/maintenance work.

    I didn't start the Accelerated Possession Procedure until July 4th as she kept telling me "my new place is ready in 2 weeks" and I wanted to help her and not get dragged through the legal process.

    Do the child/pregnancy, Council/housing issues give her enough grounds for a suspension of eviction?

    Thanks in advance for any experiences/views shared.

    #2
    I suspect that given the tenant's circumstances the judge may well decide he can't put her out on the street. She certainly has the right to ask for the eviction to be suspended. My own experience says that it will be how sympathetic the judge is.

    Comment


      #3
      Is this a s.8 case or a s.21 case? If s.8, was there a mandatory ground for possession accepted by the Court?
      JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
      1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
      2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
      3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
      4. *- Contact info: click on my name (blue-highlight link).

      Comment


        #4
        Originally posted by jeffrey View Post
        Is this a s.8 case or a s.21 case? If s.8, was there a mandatory ground for possession accepted by the Court?
        It's a s.21 case

        Comment


          #5
          Originally posted by EddieMonster View Post
          It's a s.21 case
          So see s.9(6). Court cannot adjourn/suspend, under s.9(1), if it "is satisfied that the landlord is entitled to possession of the dwelling-house...by virtue of [s.21(1)(b) or s.21(4)(a)]".
          JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
          1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
          2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
          3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
          4. *- Contact info: click on my name (blue-highlight link).

          Comment


            #6
            Courts can allow up to 42 days from the date of the hearing before a tenant is evicted by Possession Order if there is a particular reason for doing so but it's at the discretion of the judge. The tenant would have to apply for the hearing though.
            The advice I give should not be construed as a definitive answer, and is without prejudice or liability. You are advised to consult a specialist solicitor or other person of equal legal standing.

            Comment


              #7
              Originally posted by Paul_f View Post
              Courts can allow up to 42 days from the date of the hearing before a tenant is evicted by Possession Order if there is a particular reason for doing so but it's at the discretion of the judge. The tenant would have to apply for the hearing though.
              Just realised I left a rather crucial point : a hearing has been set for Monday Sep 8th

              Comment


                #8
                Originally posted by EddieMonster View Post
                Just realised I left a rather crucial point : a hearing has been set for Monday Sep 8th
                they can't extend it beyond the 25th September, but then you may have to wait for baliffs to evict

                Comment


                  #9
                  Originally posted by porridge View Post
                  they can't extend it beyond the 25th September, but then you may have to wait for baliffs to evict
                  Many thanks for you replys, but as many before me I am slightly confused.

                  As Jeffrey pointed out it is very clear in section 9(6) of the Housing Act that if s21 applies, as it does, then the judge doesn't have discretion. Yet, by the granting of a hearing, the judge in this case obviously thinks they do have discretion and both Paul_F and Porridge seem to agree.
                  Can anyone kindly inform me on what basis this discretion is based?

                  Porridge, I assume you say 25th September as it would be the discretionary 42 days from Aug 14th, the date of the Possession Order. Is that correct?

                  Comment


                    #10
                    Have a look at the Stay Of Eviction thread below originally posted by Melly. That's quite interesting.

                    I can only tell you my experience of court. I believed that the fact my tenant owes well in excess of two months rent and has made no effort to clear the arrears would give me mandatory grounds for possesion under a Section 8, as did my lawyer and my agent who have attended two hearings now. You are dealing with human beings though and the judge has some sympathy for my tenant, he wants to be sure he is doing the right thing, he is giving the tenant every chance to sort things out. The tenant simply wants to drag things out and when I finally do get a possession order I know that he will apply for a stay of eviction in order to live rent free at my property for a bit longer.

                    Your judge may well have sympathy with your tenant and put the eviction off for a couple of weeks and order another hearing. I really hope you win but just be prepared.

                    Comment


                      #11
                      Originally posted by EddieMonster View Post
                      Many thanks for you replys, but as many before me I am slightly confused.

                      As Jeffrey pointed out it is very clear in section 9(6) of the Housing Act that if s21 applies, as it does, then the judge doesn't have discretion. Yet, by the granting of a hearing, the judge in this case obviously thinks they do have discretion and both Paul_F and Porridge seem to agree.
                      Can anyone kindly inform me on what basis this discretion is based?

                      Porridge, I assume you say 25th September as it would be the discretionary 42 days from Aug 14th, the date of the Possession Order. Is that correct?
                      The judge has to grant a hearing if the tenant defends the S21, The S21 Can be defended if the notice was incorrectly served or there was no proof of service, also hearing can be granted if tenant wants to be allowed up to the maximum 42 days (the judge CANNOT allow longer than 42 days), thats it, not a very complicated procedure at all really.

                      Comment


                        #12
                        Originally posted by porridge View Post
                        The judge has to grant a hearing if the tenant defends the S21, The S21 Can be defended if the notice was incorrectly served or there was no proof of service, also hearing can be granted if tenant wants to be allowed up to the maximum 42 days (the judge CANNOT allow longer than 42 days), thats it, not a very complicated procedure at all really.
                        What I meant to say was " Am I correct in assuming....", I wasnt doubting your words.
                        As you say that isn't a complicated procedure, and I have now seen the 6 weeks in the APP notes.
                        My confusion arises from section 9(6). There appears to be a contradiction unless I am missing something - which is highly possible!

                        Comment


                          #13
                          I've just got back from the court and I am pleased with the decision.

                          It turns out that the judge only has discretion to suspend the eviction for 6 weeks from the start of the Order for Possession, which was July 31st, and as the Execution of Warrant of Possession (the bailiffs part) had been set for September 10th, could only have suspended the eviction for 1 day which she refused to do.

                          So my Accelerated Possession Procedure timetable runs like this:
                          Submit Accelerated Possession Procedure forms (£150): July 4th
                          Deemed served: July 9th
                          Defendant has 14 days to file a defence
                          Asked the court to make a possession order: July 24th
                          Order for Possession made on: July 31st to give Possession on or before August 14th
                          Requested a Notice of Appointment (with Bailiff) for Execution of Warrant of Possession (£95): August 15th
                          Informed of date of Execution of Warrant of Possession: August 21st
                          Execution of Warrant of Possession: September 10th (Defendant can file an Application to Suspend Eviction up until this date)

                          Total time: 68 days (or the best part of 10 weeks)

                          My thoughts on this:

                          The clock doesn't even start ticking, from the Landlord's point of view, until the Order for Possession is made, after 4 weeks in my case, because the judge always has the discretion of 6 weeks from this moment.

                          Still don't know why section 9(6) of the Housing Act 1988 doesn't apply (answers gratefully received).

                          All of this after 2 months notice (and in my case an extra 6 weeks of naivety). Surely it can be streamlined further?

                          Somebody in the Court system agreed to a hearing that was dismissed in 5 minutes by the judge because she could have only extended the eviction by one day. What a waste of everyone's time and money (and stress).

                          Many thanks for all responses

                          Comment


                            #14
                            Originally posted by Kathryn View Post
                            Have a look at the Stay Of Eviction thread below originally posted by Melly. That's quite interesting.

                            I can only tell you my experience of court. I believed that the fact my tenant owes well in excess of two months rent and has made no effort to clear the arrears would give me mandatory grounds for possesion under a Section 8, as did my lawyer and my agent who have attended two hearings now. You are dealing with human beings though and the judge has some sympathy for my tenant, he wants to be sure he is doing the right thing, he is giving the tenant every chance to sort things out. The tenant simply wants to drag things out and when I finally do get a possession order I know that he will apply for a stay of eviction in order to live rent free at my property for a bit longer.

                            Your judge may well have sympathy with your tenant and put the eviction off for a couple of weeks and order another hearing. I really hope you win but just be prepared.

                            Kathryn, many thanks for this reply. It meant a lot to hear your experiences and your offer of support. Apologies for not saying this earlier but it was a bit of a stressful weekend!

                            Comment


                              #15
                              Well done Eddie !, I totally agree with regarding the length of time etc

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