Eviction – Judge thinks non-existant deposit should have been protected?

Reply to the comment left by Seething Landlord at 13/12/2022 - 11:24
You are welcome.

I had lunch with a Judge just before Christmas and made pretty much the same point. Long and short of our conversation was that, in dealing with possession matters, the Court system is broken.

For some reason, landlords are portrayed as the bad guys regardless of the situation and the fact, in situations like yours, that all the landlord is trying to do is exercise their legal rights is secondary.

The problem is that, for whatever reason (perhaps political, not wanting to further burden the Council's housing situation), the Court's seem to feel that evicting a tenant is 'unjust' and so try and find any number of reason not to grant possession. Sadly, I am seeing this more and more now and I cannot see the Court's approach changing.

To be honest though, it shouldn't be any surprise that the Court's seem to be against granting possession orders - just look at how the whole system for dealing with the applications is administered eg if an order for possession is mandatory where a valid section 21 has been served why does it take so long for them to be dealt with? Accelerated possession...hmmmm I am not so sure.

Just to reassure you that you are not alone when struggling to understand the Court's logic I recently heard of a case where the landlord mistakenly forgot to mention that they had taken a deposit. They had dealt with the deposit correctly but just completed the Court application form incorrectly.

The tenant raised a defence stating the deposit had been paid so the landlord's solicitor completed a witness statement for the hearing. In this statement there was an apology from the landlord for the incorrect information and provided a copy of all of the relevant information and evidence the tenant received all of the correct information (something the tenant did not dispute).

At the hearing the Judge refused to grant possession, even though the tenant did not attend or raise any further disputes or disagree with the witness statement. Instead the Judge directed that a fresh Court application form needed to be submitted and served as the tenant may want to raise a further defence or issue once they have received the correctly completed form...how can that possibly be right?

Reply to the comment left by CMS at 29/12/2022 - 02:05
What did your lunching Judge say of what you told them?

Reply to the comment left by CMS at 29/12/2022 - 02:05
I know that it won't go down well with some on this forum when I say that landlords involved in eviction proceedings need to take off their blinkers and try to see things from the point of view of the law, the Court and the tenant.

By definition S21 is a no-fault procedure and what the Court will therefore see is a landlord who is saying "I want my property back even though there is no fault on the part of the tenant" and a tenant who is about to be made homeless even though he has done nothing wrong.

We all know that in most cases this is nonsense but the Court is not permitted to look behind the notice to establish the true reason for it and can only take account of whether the notice has been properly served and all the requirements met. Any missing detail will inevitably result in the application being dismissed.

The lawyer's answer to all this is that the Housing Act provides sufficient grounds for eviction when there is fault on the part of the tenant and S8 should therefore be used in most circumstances, with S21 reserved for situations where S8 does not provide an answer, such as the landlord wishing to sell.

Reply to the comment left by Luke P at 29/12/2022 - 09:35
He openly admitted that the system is broken but did appreciate that understanding that there is a problem doesn't help solve it.

I just really think that, in the majority of possession claims, the Court's intentions are at odds with what is right. Too often the tenant is looked at as a victim and the landlord as the bad guy regardless of the fact that (a) the landlord may have done everything right and followed the correct procedure; and (b) the actual wording of the law is on the landlord's side.

I think that too often the Court's take the subjective view that, regardless, not granting a possession order will result in justice as opposed to starting from an objective basis and simply interpreting the law against the facts to deliver the right outcome according to the law...but what do I know!

Reply to the comment left by Seething Landlord at 29/12/2022 - 12:18
I completely understand what you are saying but must admit that, in my experience, most landlord's only use section 21 when (1) as you say, the landlord wishes to sell; (2) the landlord wishes to take up occupation; or (3) in the majority of the cases I deal with, where the fixed term has expired, even if the tenant is in default of their tenancy and the landlord could take proceedings under section 8 the landlord opts for the section 21 route in the hope that the Court have no option but to grant the order for possession.

Regardless of how the media may portray landlords, in my experience, very few evict tenants simply because they can...as we know the majority of landlord's rely upon having the properties occupied for income etc so serving a section 21 to evict a tenant isn't, in my view, used as quite the sword of damocles that the media believe it is.

Best, Charles

Reply to the comment left by CMS at 30/12/2022 - 23:07
From a tenant's point of view the threat of S21 is seen as the sword of Damocles and in some cases will inhibit their behaviour to their own detriment.

Your third point highlights the problems with S21 and the Courts. The judge simply does not know the true reason for the landlord to be seeking possession and is arguably entitled and perhaps obliged to assume that where a specific remedy is provided by S8, that is the route that the landlord could/should have taken. He will therefore approach the case on the basis that there is no fault on the part of the tenant and that to succeed, the landlord must dot every I and cross every t.