A Pre-Action Protocol for Private Renting

12th May 2020 Commercial Litigation

At the evidence session held by the Housing, Communities and Local Government select committee the other day the Secretary of State, Robert Jenrick again indicated that there would be a pre-action protocol brought into place to cover private rented possession proceedings, and that this would be in place prior to the current stay on possession proceedings ending on 25 June.

There were few other details given but the current expectation is that the government will re-purpose the existing pre-action protocol for social landlords seeking possession and apply it, or parts of it, to the PRS.

Looking at the existing Pre-Action Protocol for Possession Claims by Social Landlords it aims primarily at making sure the tenant has all the information at the earliest opportunity. So where the tenant falls into rent arrears then early contact should be made to alert the tenant to the arrears, ask for the reasons and encourage the tenant to make contact to agree a repayment schedule. Once a formal notice is issued then further attempts should be made to seek to discuss the situation. This is not actually that onerous. Most landlords and agents will contact tenants as soon as they fall into arrears and long before the serve a section 8 notice to try and resolve the situation. A slight adjustment to this process is probably all that is needed. Where a landlord is relying on a mandatory ground for possession (and this would include service of a section 21 notice) the protocol also requires the landlord to give their reasons in an accompanying letter and to invite the tenant to give details of any relevant personal circumstances that should be considered. While this involves slight alterations to the current process for many landlords and agents it is not necessarily overly onerous and can be accommodated.

So what are the consequences likely to be for non-compliance? Largely this is up to the courts. Generally, the options are to dismiss a case completely, adjourn it to allow for the protocol to be complied with, or to penalise the party not complying by not awarding legal costs. Given that most private landlords are seeking to rely on mandatory grounds for possession such as ground 8 in a section 8 notice or a section 21 notice the court’s have no real basis for dismissing an possession case and they would be on difficult terrain if they adjourned without good reason. Adjourning a section 21 based claim for example would be quite risky. This leaves costs as a penalty. However, this is not much of an inducement. Possession cases generally only attract fixed costs which are already pretty low and, in practice, the ability of landlords to enforce costs awards is so weak that many do not bother anyway. So the prospect of not being awarded those costs will be unlikely to persuade landlords to comply with a protocol where it is slowing down their ability to seek possession.

Interestingly, the Minister was asked whether the protocol would be a temporary or permanent fixture. Previously, the government had indicated that the protocol would be temporary but he avoided the question the other day. There must be a real possibility that the government will try to keep a pre-action protocol for private sector rental possession over the longer term.

While there will be concern over the imposition of a new protocol the current pre-action protocol does not require landlords and agents to do a great deal more than many of them were doing already, it merely formalises the process. It remains to be seen exactly what appears but a protocol could be accommodated without too much pain.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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