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Landmark arrears case heads to Court of Appeal

12 September 2018 • Mike Nuttall

Croftons’ Associate Kirsty Varley is to appear in the Court of Appeal in a landmark case that is set to clarify the law surrounding expired possession orders and how social landlords deal with tenants with a long history of non-payment of rent.

The law is not clear on how housing providers should approach the situation where a tenant has failed to pay their rent for many years, has an unenforced possession order older than six years, and then continues to accrue fresh arrears after the possession order was granted. Permission to enforce possession orders as of right ‘expires’ after six years, and after that time period they cannot be enforced without the permission of the Court.

No definitive answers

“Many RPs will be familiar with the dilemma of having a suspended possession order for rent that is more than six years old and has never been satisfied, but where new rent arrears are subsequently accruing,” says Kirsty.

“How should this be dealt with? Apply for permission to rely on the old order? Start proceedings afresh and tell the tenant that the old possession order no longer applies? And if so, does the old order need to be set aside? These are questions to which, at present, there is no definitive answer to.”

Decisive ruling

Croftons was instructed by one of our housing clients earlier this year on a matter where this situation needed resolving, and the case was transferred directly to the Court of Appeal. Following consideration by a single Lady Justice at the Court of Appeal, the full hearing will take place in March 2019 when a decisive ruling will be made in order to provide clarity for housing providers and legal professionals.

The case will provide answers to whether the continuing accrual of rent arrears provides one single “rolling” cause of action or whether arrears that build up after the judgment date are a fresh breach of tenancy and therefore provide a fresh cause of action. At present the law is not clear on this point.

Kirsty, who is a Higher Rights Advocate, will be led by distinguished Counsel Andrew Lane of Cornerstone Chambers.

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