Rent Arrears - Possession Action

Transcription

1 D3 Rent Arrears - Possession Action 1 Conditions 1.1 Before an application for a Court hearing can be made, the following conditions should be met; Every attempt to contact the tenants must have been tried, and recorded on CAPITA: - Telephone, letter or . - Out of hours contact if necessary. - Home visit where the property will be checked and if possible speak to neighbours to find out if the tenant is still living there and when they are usually home. - Agreement made if contact is made. - Next of Kin. - Employer. - If tenant is an under occupier, an application for DHP has been made. The Pre Court Action Protocol has been completed. (Appendix D.3.2) The Notice of Seeking Possession is correct and is still valid. The arrears should be solely arrears for that tenancy, not former tenant arrears or rechargeable repairs. If a tenant is withholding rent because of disrepair or any other grievance, reasonable steps should have been taken to resolve the problem. The Income Manager has given approval. The Form Arrears Action Recommendation should be used (Appendix D.3.1). 2 DIY Possession Action 2.1 NCHA will prepare the Court Papers via the PCOL system. It is usual that the Income or Estate Officer will present the case in court. 2.2 If the case is contested or could present difficulties, it may be necessary to instruct Solicitors and the Income Manager s advice should be sought. 2.3 Staff employed by a Housing Association do not have the right of audience to present cases at the County Court. (Section 60 County Court Act, 1964). However, it is usual that this permission is given in all the Courts NCHA use. Page 1 of 15

2 3 Prepare Papers 3.1 A Court Fee is payable for Possession Orders and Warrants for Eviction. 3.2 A direct debit has now been set up with H.M. Paymaster General for payment of all cases submitted via PCOL. If papers are submitted manually then finance is instructed to issue a cheque using an Internal Cheque Request Form. The cheque should be made out to the H.M. Paymaster General. 3.3 NCHA will submit the court forms over the PCOL system e.g., Summons for Possession of Property (N5), and Particulars of Claim for Possession (N119) should be completed providing all the information requested by the Court. 3.4 The forms should be submitted to the appropriate Court. If block booking Court hearings, it is important to submit the papers at least 6 weeks before the Court date. 3.5 Via PCOL, the Court will send a plaint note to NCHA with the Case Number, confirming the date and time of the hearing. 4 The Summons 4.1 The Court will issue a Summons for the tenant to attend Court. 4.2 The Summons will be accompanied by Form NllR, that is filled in by the tenant and returned to the Court before the Court Date. 5 Preparing For Court 5.1 The Income Officer must continue to try to contact the tenant before the court hearing and monitor any agreement made and make every effort to ensure the arrears are reduced. 5.2 The Income Officer will prepare the Court script. This will include: Name and address Current Rent Daily rent Any Housing Benefit Net rent Current Arrears An amount to be paid off the arrears Page 2 of 15

3 A copy of the "Court Date Received" letter Brief details of family, income and the histoy of how the arrears accrued Decision about whether suspended or absolute order is requested The Copy NSP with a copy of the certificate of service attached Diary notes A full copy of the tenancy agreement, an up-to-date rent statement and copies of any relevant correspondence should also be to hand at the hearing. 5.3 The tenants should be advised to attend the court hearing and told what will be expected from them during the hearing. 5.4 The tenants should be advised to seek independent legal advice. 6 Presenting The Case 6.1 On arrival at Court check the listing and report to the Court Clerk or Usher 6.2 If the defendant is present at court, make contact. If possible explain what will happen and confirm any agreement. 6.3 When the case is called have the summary sheet and NSP at hand. It is sometimes necessary to swear the oath. 6.4 Tell the Judge your name, job title and who you are employed by. 6.5 Give the judge the information from the summary sheet covering rent, arrears, and what Order is requested. The Judge may request further information and to see the Notice of Seeking Possession and proof of service. 6.6 If the defendants are in court, the Judge will ask them to confirm the arrears and that an arrangement is acceptable. 7 Postponed Possession Order 7.1 Between September 2006 and May 2009, courts granted a Possession Order postponed (PPO) on the condition that the tenant pays current rent plus an agreed amount off the arrears. 7.2 Where the tenant keeps to the conditions of postponement, they will retain a valid tenancy. Page 3 of 15

4 8 Suspended Possession Orders 8.1 From May 2009, courts are granting a Possession Order suspended ( SPO) on the condition that the tenant pays current rent plus an agreed amount off the arrears. 8.2 Where the tenant keeps to the conditions of postponement, they will retain a valid tenancy. 8.3 If the tenant does not keep to the conditions of the suspended order, they will no longer become tolerated trespassers. 9 Immediate Possession Orders 9.1 In some circumstances an absolute order for Possession may be requested which can take effect forthwith, 7, 14, 21 or 28 days from the date of the hearing. This would be requested if the tenant has moved out of the property or is suspected to have moved out. 10 Money Judgment Orders 10.1 The particulars of claim will have asked for an Order for Possession plus an Order for the tenants to pay rent and arrears. If the Possession Order is given, a money judgement ordering that these sums be paid will also be granted. A money judgement is effective for 6 years. The tenant s name and address is entered in the Register of County Court Judgements. This will make it difficult for the tenant to obtain credit. Once a debt has been cleared, a tenant or NCHA can request the Court to remove the debt from the Register. 11 Court fees 11.1 Along with the possession order, NCHA requests an order for the costs to cover the Court Fee. If the tenant has had a number of Court Orders it may be decided to request the fixed fee which will provide costs in addition to the Court Fee. 12 After the Hearing 12.1 The Court will send NCHA and the tenant a copy of the Court Order. A subaccount should be created by the Housing Management Officer on the tenant s account to show the Court costs incurred NCHA will inform the tenant in writing of the Court s decision and told of the Page 4 of 15

5 consequences if the Court Order is not kept to The Income Officer will monitor the Court Order. If the terms of the order are not kept to, the Income Manager must be informed A Postponed or Suspended Possession Order remains valid until all payments due under that order have been made (i.e. it has no fixed term life span). When attempting to evict a person with a PPO/SPO over 6 years old, NCHA will have to place an application before a District Judge for a hearing to explain why they want to evict. The Judge will then decide if they can apply to the Bailiff If the Order is not being kept to, other possible options are; Vary the Terms of A Possession Order Attachment of Earnings Garnishee Order Eviction 13 Varying The Terms Of A Possession Order 13.1 If a tenants circumstances change and they cannot afford to keep to the terms of the order, the correct procedure would be for the tenant to apply to the Court for a variation to the terms of the Order using Form Attachment of Earnings 14.1 If the terms of the Possession Order are not kept to and the tenant is in work, NCHA can apply to the Court to enforce the Judgement using an Attachment of Earnings. The Court orders the employer to make certain fixed deductions from weekly or monthly earnings The form Request for Attachment of Earnings Order N337 (Appendix D.3.12) should be completed and sent to the Court with the appropriate fee. Information about the defendant's employment must be known The administration of Attachment of Earnings can be problematic in that the payments usually take some time to reach NCHA and if the tenant's wages fall below a certain level the full amount may not be deducted. Payments are made by the employer direct to NCHA Page 5 of 15

6 15 Garnishee Orders 15.1 A Garnishee Order is applied to a tenant s bank/building society account. It can be used when the terms of the Possession Order have not been kept to and the details of the account are known This method is useful if it is known that there are sufficient funds in the account to clear the arrears, for example where tenants receive redundancy or compensation payments An Affidavit is prepared and submitted to the Court with the appropriate fee If the action is successful, the bank/building society will forward a cheque to NCHA 16 Eviction 16.1 Eviction should be the last course of action to be used when all other avenues have failed Every attempt to contact the tenants must have been tried, and recorded on CAPITA: Telephone, letter or . Out of hours contact if necessary. Home visit where the property will be checked and if possible speak to neighbours to find out if the tenant is still living there and when they are usually home. Agreement made if contact is made. Next of Kin. Employer. If tenant is an under occupier, an application for DHP has been made. Eviction following a Postponed Possession Order 16.3 If a tenant does not keep to the terms of a Postponed Possession Order, NCHA must follow the procedure outlined in Appendix D.3.3. NCHA will receive a Possession date and can apply for a Warrant of Possession before the tenant can be evicted. Eviction following a Suspended Possession Order 16.4 If a tenant does not keep to the terms of a Suspendeded Possession Order, NCHA can apply for a Warrant of Possession before the tenant can be evicted. Page 6 of 15

7 From May 2009, Tollerated trespassers will no longer be created if a tenant does not keep to the terms of a Suspended Possession Order. 17 Preparing the Papers 17.1 A Warrant of Possession is requested via PCOL by completing form N325 "Request for Warrant of Possession of Land" (Appendix D.3.8). The fee will be paid via direct debit to the Court The Warrant and date of eviction is then issued to the tenant by the Court Bailiff. The Bailiff will write to the tenant twice, hand delivering one letter to the property. NCHA will write to the tenant with the date and time set for the eviction. 18 Appeal against the warrant for possession 18.1 The tenant may make an offer to pay to stop the eviction going ahead. If this clears the total arrears and court and bailiff costs., the Bailiff must be informed in writing to cancel the eviction. If the offer does not clear the arrears and costs,the tenant should be advised to appeal against the warrant The tenant has the right to apply to the Court for the Warrant to be suspended. NCHA will suspend the eviction when ordered to by the court 18.3 Where such applications are successful and the Judge grants 2, 3, or even 4 suspensions, the NCHA officer should ask the Judge for permission to appeal against their decision. It is usual for permission to be refused. If this is the case NCHA should complete a copy of form N161 and send it to the Court with a fee of 100. The grounds for appeal should mention that the defendant has failed to keep to the terms of any PPO/SPO awarded and that the rent arrears have continued to rise. The circumstances of the case should then be outlined on the form. An appeal hearing should then be granted At the appeal hearing the court will decide if the eviction will be suspended or will go ahead. 19 Eviction date 19.1 Prior to an eviction taking place NCHA should inform the Local Authority Housing Department and other Departments, such as Social Services, especially if children are involved If trouble is expected at the eviction, the Estate Officer will notify the Bailiff and Page 7 of 15

8 the Police be asked to attend The eviction should be attended by the Estate Officer, who will meet the Bailiff at the property. A receipt book should be taken in case the tenant offers to pay in the last minute. The Estate Officer will contact the maintenance department to arrange for a joiner to be present to change the locks at the property The bailiff will authorise entry into the property and deal with any tenants or occupants left in the property If there are possessions left in the property, an inventory should be made and the procedure outlined in the Abandonment policy should be followed NCHA should give advice to any remaining tenants about other housing options. 20 Small Claims in the County Court 20.1 An alternative to taking possession proceedings would be to use the small claims action. (Order 19, Rule 5 CCR 1981) The small claims action would be useful if the debt is static or for former tenant s arrears or rechargeable repairs If this arrears recovery action is to be used the tenant must be informed and should be told of the consequences in that judgements are registered in the Register of County Court Judgements. This may mean that credit will be difficult to obtain and if payments are not made the bailiffs could repossess personal possessions NCHA is registered with HMCS "Money Claims On Line". All guidance and forms are available on To commence the action complete form NI "Default Summons". The Court will require two copies plus the appropriate fee The Court will then issue the summons on the tenant. The reverse side of the summons gives the tenant the following options; a) Do nothing - the Court will make a judgement b) Dispute the claim in some way by completing form N9B c) Admit the claim and ask to pay by instalments by completing form N9A Page 8 of 15

9 d) Pay the full amount to NCHA 20.7 When the summons has been issued on the tenant, NCHA will be sent a Notice of Issue of Default Summons N205A). This explains the tenants options listed above and tells Nottingham Community Housing Association what to do in the event of each option If the tenant has not replied to the summons or they have admitted the money is owed and made an offer to clear the debt the Request for Judgement Section at the bottom of form N205A should be completed which asks for a preferred judgement If there is a defence or a counter claim the court will send a copy with the appropriate instructions The court will make a judgement as to how the debt should be paid. NCHA is sent the form Judgement for Plaintiff N30T If the tenant does not pay in accordance with this order, NCHA can then request the Bailiff to take possessions from the tenant's home to sell in order to reduce the debt. This is done using the form, Request for Warrant of Execution (N323). Authority must be given by the Assistant Director of Housing If the tenant is working, NCHA could also ask for an Attachment of Earnings (Order N337) Page 9 of 15

10 Appendix D.3.1 EVICTION RECOMMENDATION Name Address IBS Reference Ethnic Origin CoT Date Rent Weeks outstanding Court Date Arrears at Court SPO Given Current Arrears Summary of History Authorisation Housing Officer Date Authorisation Manager Date Authorisation Senior Staff Date Page 10 of 15

11 EVICTION RECOMMENDATIONS PROCEDURE Either an Eviction Recommendation (ARR for Eviction) or Possession Date Application (ARR for PDA) pro forma, fully completed is sent to The Director of Housing Services (via his PA). No other paperwork is required. The pro forma's can be sent by or internal post The Director of Housing Services will take the forms to the Executive Team for approval The Executive Team will approve the recommendation, and the approved eviction will be minuted on Executive Team minutes Once the Executive Team minutes are received by the PA to The Director of Housing Services, the PA will notify the lncome Manager. In the unlikely event that the Executive Team do not approve an eviction, The Director of Housing Services will let Regional Managers know as soon as possible in order that any eviction action that may have started, can be stopped When possession has been gained, The Director of Housing Services (via the PA) needs to be informed of the date and circumstances in order that this can be recorded on the database Page 11 of 15

12 Appendix D.3.2 Pre Action Protocol (PAP) The aims of the PAP are: 1. Ensure that difficulties over rent are resolved wherever possible without court proceedings. 2. Encourage more contact between landlords and tenants to avoid using up court time. Before Court Procedure 1. Contact tenant as soon as possible if tenant falls into arrears to discuss: Cause of rent arrears Financial circumstances Entitlement to benefits Affordable repayment based on income and expenditure. 2. Send every arrears letter separately to each tenant 3. Agree affordable sums for repayment of arrears and the time limit within which tenant should comply. HMO s to set up formal arrangement on IBS every time. 4. Where the tenant is vulnerable, HMO s should take reasonable steps to ensure tenant understands the information given. Please make a note on diary how this has been done. 5. Where tenant is particularly vulnerable or under 18, NCHA can apply to court for the appointment of a litigation friend. 6. Where the tenant can prove that He/she has an outstanding HB claim Reasonable expectation HB claim Paid Shortfall in HB then NCHA should not start court proceedings. 7. Where tenant is paying the agreed arrangement then NCHA should agree to postpone court proceedings as long as they keep to the arrangement. 8. At least 10 days before going to court NCHA should send tenant rent statement and let them know current situation with HB. Page 12 of 15

13 9. If NCHA fail to comply with this protocol we may get costs incurred against us or have orders that are adjourned, struck, or dismissed. 10. You should always advise the tenant to seek assistance from CAB/relevant other agencies diarise your advice. After Court 1. Discuss implications of PPO with tenant after court. 2. Discuss other methods of resolution without going for eviction Page 13 of 15

14 Appendix D.3.3 Procedural Guide to Court Proceedings From September 2006 to May Courts are now giving a different type of order for rent possession cases. This replaces the current Suspended Possession Order (SPO). The new order is called a Postponed Possession Order (PPO). (appendix 2) The PPO still gives an order for the tenant to pay current rent and.. towards their arrears and costs. However it does not provide a date for possession as in a SPO. 2. If a tenant breaches the PPO and you want to commence eviction proceedings,ncha must now apply to the court for a possession date before we can evict the tenant. NCHA must write to the tenant informing them that NCHA is going to apply to court for a possession date. 3. HMO s must send the tenant a Notice of intention to apply to court to fix a date for possession NIP letter (appendix 3) 4. Three copies will be printed out; one for each tenant plus one for the tenant file. You should attach a rent statement to the NIP letter for each tenant. 5. The NIP should be hand delivered or sent 1 st Class. A certificate of service should be attached to NCHA s NIP letter. 6. The NIP gives the tenant 7 days to respond to NCHA. Tenants can either: Make up missed payments - then NCHA will not go for the possession date. Disagree in writing with the arrears. If they disagree they must prove that payments have been made. 7. After 14 days and within 3 months of issuing the NIP, NCHA can apply to court for a possession date Possession Date Application (PDA). NCHA must complete a N244 court form and send 35 with the form to court (appendix 4). The following should be attached to the N244: Rent statement from at least PPO A copy of the NIP A copy of the defendants reply Any further correspondence Where the first date of default is more than 2 years before this application, a rent statement should show a minimum of 2 years. 8. If NCHA does not apply for a possession date within 3 months, we will have to issue another NIP and go through the procedure again. Page 14 of 15

15 9. The courts will normally provide NCHA with a possession date (PDR) without a hearing. 10. However, the tenant has a right of appeal against fixing a possession date, or the judge may decide to hold another hearing. In this case will have to attend court to fight for a possession date. 11. Once a possession date is received (PDR) NCHA can apply to the bailiffs to evacuate the tenant and the normal procedures will continue. 12. If a tenant appeals against an eviction NCHA should be in a better position to argue the case against an appeal as the tenant has already had the chance to make up missed payments and appeal against possession date. 13. Where NCHA has previously received a SPO (pre Aug 06) then follow the normal procedure i.e., apply to bailiffs if the SPO has been breeched. Page 15 of 15