Break Clauses and reimbursement of rent paid in advance
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Since the decision Cardiff v Lee (Flowers)  EWCA Civ 1034 landlords up and down the country have been trying to gauge how best to deal with the suspended orders that they have against tenants when there is an allegation of breach. These orders usually fall into two categories – suspended orders for rent and suspended orders for anti-social behaviour and tenancy conduct.
To recap, Cardiff v Lee involved a landlord applying to issue a warrant after an alleged breach of suspended possession order without first asking for the court’s permission. The tenant appealed as permission had not been sought and the court explained which procedure should be used and how applications for warrants issued without permission first being sought should be dealt with. The landlord accepted the tenant’s point and the appeal then focussed upon whether the court was able to grant permission retrospectively via its case management powers that enable the court to remedy any procedural defect under CPR 3.10.
The Civil Procedure Rules provide guidance in rule 83 as to when a landlord needs to apply for permission to enforce a warrant – this has always been taken to be the case in terms of suspended possession orders where anti-social behaviour or lack of access to property has been alleged.
Orders usually stipulate that the Defendant has to be given a period of notice before the application is made, and this enables the Defendant to obtain legal advice and make an application to suspend any warrant applied for if the order is alleged to be breached. The wording of CPR 83 means that landlords also need to apply for possession when there is any change in circumstances in a case entitling them to apply for the warrant. This includes missed payments in rent arrears cases.
A large number of landlords had not realised this and were simply applying for warrants without first applying for permission. If this has been done the court does have the power under CPR 3.10 to remedy what is in effect a procedural defect in the landlord not having asked for permission before applying for a warrant.
At Croftons we have had several cases now where we have either had to apply for permission, or had to assist clients when they have applied for a warrant without having asked for permission first.
Our experience of permission applications has been positive and we have seen that courts are viewing the questions of whether there is evidence that an order has been breached and so granting permission as straightforward. The court has held in cases we have had that there is no discretion, so if an order has been breached then permission should be granted.
In terms of remedying defects when a warrant has been applied for without requesting permission first, the courts are much more willing to forgive defects that occurred before the Cardiff v Lee decision than those that occurred after it. The moral of the story there is if you are applying for a warrant after October 2016, until there are any changes to the CPR, make sure you apply for permission first!
For any further advice on this issue or any aspect of housing management and tenancy enforcement contact Kirsty Varley.
Croftons is the trading name of Croftons Solicitors LLP, a limited liability partnership registered in England and Wales with number OC343375. The term ‘partner’, if used, denotes a member of Croftons Solicitors LLP or a senior solicitor of Croftons Solicitors LLP with equivalent standing and qualifications. A full list of members is open to inspection at the office. Croftons is authorised and regulated by The Solicitors Regulation Authority (SRA) number 508041. Croftons has its principal place of business at The Lexicon, Mount Street, Manchester, M2 5FA.