Suing the Council for wrongful prosecution.

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Have just emailed this to the Court and will also deliver hard copy and need to follow up later with another call.

Claim: XXXXXX

Greetings Sir/Madam

Further to receiving court papers yesterday in relation to the hearing on the 25^th July with Deputy Judge XXXXX, and also further to a telephone conversation to the court seeking urgent clarification in regard to above claim number, please find scan of aforementioned suspended order for possession as directed by the court (since you could not access the file yesterday).

I am finding it hard to understand the meaning of what it states (precis below for ease of reference).
Also, in addition, my understanding was that the Judge gave me 6 weeks to pay the costs…which should by my reckoning be 5^th SEPT yet it states 5^th Oct

I find the wording most ambiguous and am very confused by virtue of saying I have to vacate by 22nd August and then further on to say the claim (for possession)has been dismissed. What does this mean? I will telephone the court later as a matter of urgency.

Kindest Regards

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Well now I am totally confused and afraid.

Have received the court decision.
In the left hand corner of letter it states:

Order for possession
(rented premises)
(suspended)

it then continues:
....and upon the arrears having been cleared last week
.....and upon a lengthy history of defaulted rent payments
...and upon it being reasonable to make the order

This order has been made and the court orders that:
1) The defendant give the claimant possession of (address) on or before 22nd August
2) The defendant to pay the current rent as it falls due first payment 5th Aug (this has been paid)

3) The defendant pay the claimant's cost of the claim......to be paid on or before 5th Oct
4)Claim struck out/dismissed

I find the wording most ambiguous and am very confused by virtue of saying I have to vacate by 22nd August and then further on to say the claim has been dismissed. What does this mean?

Also, my understanding was that the Judge gave me 6 weeks to pay the costs (5th Sept) and yet this letter states 5th October!...so which is the correct date to pay?

Help please.......

Ms Andrist

The law is that you can still make a claim to recover possession once you've been evicted if you pay the debts off within 6 months.

If you made the claim against the landlord you're the claimant, and vice versa the landlord. I assume you're the defendant and the landlord the claimant.

The Order is saying that you (defendant) have 10 days from now to leave the property, which is very harsh, as the County Court (is it the County County) has what it called a discretionary power (equitable jurisdiction, means fair) to delay possession 'as it thinks fit.' It also has the discretion to postpone (delay) delay possession and allow you to pay off your debts up to 6 months.

Forfeiture for non-payment of rent

I think the 'forfeiture' clause issue now is very live/ relevant now. Is there is a forfeiture clause in your tenancy contract terms/ covenant? Look at this barrister's article for the unfair use of 'forfeiture' for non payment of rent: http://www.landmarkchambers.co.uk/us...ber%202014.pdf

Also look at section 138, County Court Act 1984. This is area of law is a very technical land law issue for tenancy contracts.

I think the County Court may have abused its power therefore and you could possibly appeal on a point of law. Abused its powers because it had discretion to extend the delay for possession for at least 6 months in this forfeiture proceeding, but has chosen to not to (ie abuse of discretion). Have you tried to get legal aid for this type of situation? Does the Order go on to say that you have permission to appeal? It's normally 21 days for appeals. I think the next port of call would be an Appeal to the High Court (assuming this is an Order from the County Court), as an appellant court (ie you will be the appellant).

"Section 138, County Court Act 1984

Forfeiture for non-payment of rent

138
Provisions as to forfeiture for non-payment of rent.
.
(1)
This section has effect where a lessor is proceeding by action in a county court (being an action in which the county court has jurisdiction) to enforce against a lessee a right of re-entry or forfeiture in respect of any land for non-payment of rent.
.
(2)
If the lessee pays into court [F1or to the lessor]not less than 5 clear days before the return day all the rent in arrear and the costs of the action, the action shall cease, and the lessee shall hold the land according to the lease without any new lease.
.
(3)
If—
.
(a)
the action does not cease under subsection (2); and
.
(b)
the court at the trial is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture,
.
the court shall order possession of the land to be given to the lessor at the expiration of such period, not being less than 4 weeks from the date of the order, as the court thinks fit, unless within that period the lessee pays into court [F1or to the lessor]all the rent in arrear and the costs of the action.
(4)
The court may extend the period specified under subsection (3) at any time before possession of the land is recovered in pursuance of the order under that subsection.
.
(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1
.
(6)
Subsection (2) shall not apply where the lessor is proceeding in the same action to enforce a right of re-entry or forfeiture on any other ground as well as for non-payment of rent, or to enforce any other claim as well as the right of re-entry or forfeiture and the claim for arrears of rent.
.
(7)
If the lessee does not—
.
(a)
within the period specified in the order; or
.
(b)
within that period as extended under subsection (4),
.
pay into court [F1or to the lessor]—
(i)
all the rent in arrear; and
.
(ii)
the costs of the action,
.
the order shall be [F2enforceable]in the prescribed manner and so long as the order remains unreversed the lessee shall [F3, subject to subsection (8) and (9A),]be barred from all relief.
(8)
The extension under subsection (4) of a period fixed by a court shall not be treated as relief from which the lessee is barred by subsection (7) if he fails to pay into court [F1or to the lessor]all the rent in arrear and the costs of the action within that period.
.
(9)
Where the court extends a period under subsection (4) at a time when—
.
(a)
that period has expired; and
.
(b)
a warrant has been issued for the possession of the land,
.
the court shall suspend the warrant for the extended period; and, if, before the expiration of the extended period, the lessee pays into court [F1or to the lessor]all the rent in arrear and all the costs of the action, the court shall cancel the warrant.
[F4(9A)
Where the lessor recovers possession of the land at any time after the making of the order under subsection (3) (whether as a result of the enforcement of the order or otherwise) the lessee may, at any time within six months from the date on which the lessor recovers possession, apply to the court for relief; and on any such application the court may, if it thinks fit, grant to the lessee such relief, subject to such terms and conditions, as it thinks fit.
.
(9B)
Where the lessee is granted relief on an application under subsection (9A) he shall hold the land according to the lease without any new lease.
.
(9C)
An application under subsection (9A) may be made by a person with an interest under a lease of the land derived (whether immediately or otherwise) from the lessee’s interest therein in like manner as if he were the lessee; and on any such application the court may make an order which (subject to such terms and conditions as the court thinks fit) vests the land in such a person, as lessee of the lessor, for the remainder of the term of the lease under which he has any such interest as aforesaid, or for any lesser term.
.
In this subsection any reference to the land includes a reference to a part of the land.]
(10)
Nothing in this section or section 139 shall be taken to affect—
.
(a)
the power of the court to make any order which it would otherwise have power to make as respects a right of re-entry of forfeiture on any ground other than non-payment of rent; or
.
(b)
section 146(4) of the M1Law of Property Act 1925 (relief against forfeiture)."

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

But I HAVE not debts!! Arrears are paid and rental has been paid on time.....

[Diana M]

Re: Suing the Council for wrongful prosecution.

Openlaw there is no debt to pay. The arrears have been paid.

From what the OP has said the Order for Possession is suspended. How can she appeal a Suspended Order in the High Court ?

Di

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

But I HAVE not debts!! Arrears are paid and rental has been paid on time.....

Ms Andrist

If you have paid your debts and the judge still orders a suspended possession order to be executed, this is clearly abuse of process. You cannot ask for another judge normally, but technically if the judge has personal grudge against you, his duty is to let another judge in the County Court hear the case. Other than that, you could make another motion to the same judge citing section 138, County Court Act 1984. Tell the judge it is your belief - assuming the landlord has a forefeiture clause in the tenancy contract to bring proceedings, and has not accepted any rent at all, in the process from the time he brought the action, that the judge has misapplied the law. Failing that, it's an appeal to the High Court.

[Diana M]

Re: Suing the Council for wrongful prosecution.

Well now I am totally confused and afraid.

Have received the court decision.
In the left hand corner of letter it states:

Order for possession
(rented premises)
(suspended)

it then continues:
....and upon the arrears having been cleared last week
.....and upon a lengthy history of defaulted rent payments
...and upon it being reasonable to make the order

This order has been made and the court orders that:
1) The defendant give the claimant possession of (address) on or before 22nd August
2) The defendant to pay the current rent as it falls due first payment 5th Aug (this has been paid)

3) The defendant pay the claimant's cost of the claim......to be paid on or before 5th Oct
4)Claim struck out/dismissed

I find the wording most ambiguous and am very confused by virtue of saying I have to vacate by 22nd August and then further on to say the claim has been dismissed. What does this mean?

Also, my understanding was that the Judge gave me 6 weeks to pay the costs (5th Sept) and yet this letter states 5th October!...so which is the correct date to pay?

Help please.......

Based on what you've posted you have a Suspended Possession Order. There has to be an Order in the first place in order for it to be suspended (if you follow me). So what you've been sent is the Order which is suspended unless you breach the terms.

One of those is to pay the rent due 5th August. You say you've done that.

Another of those terms is that you pay those costs by 5th October. You believe the DJ said in court you should pay them by 5th September. You're not prejudiced if the Order gives you an extra month. However you're wise to seek clarification from the court in case that was a typo. Some DJs have dreadful handwriting

Di

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Well now I am totally confused and afraid.

Have received the court decision.
In the left hand corner of letter it states:

"Order for possession
(rented premises)
(suspended)"

Let's analyse the terms. "Order for Possession" is not in parenthesis, ie it's directly expressed in verbalised print. Rented premises and suspended) as they're both in parenthesis (brackets) it implies they're for information purposes, ie the property is a rented premises type, and 'suspended' refers to inform the order was suspended.

"it then continues:
....and upon the arrears having been cleared last week
.....and upon a lengthy history of defaulted rent payments
...and upon it being reasonable to make the order"

This part refers to the factual history in express words, ie actually word for word: 'lengthy history' of 'defaulted rent payments' which hints at (alludes) there's a likelihood of further default where you to remain in possession of the premises. The final part of the factual history is 'beingreasonable to make the order' - so it's alluding it's a new order than from previously. It also use 'the order,' here.
"This order has (past tense) been made and the court orders (current instruction) that:

1) The defendant give the claimant possession of (address) on or before 22nd August
2) The defendant to pay the current rent as it falls due first payment 5th Aug (this has been paid)

3) The defendant pay the claimant's cost of the claim......to be paid on or before 5th Oct
4)Claim struck out/dismissed"

Paragraph number 4 is very ambiguous and contradicts paragraphs numbers 1-3

"I find the wording most ambiguous and am very confused by virtue of saying I have to vacate by 22nd August and then further on to say the claim has been dismissed. What does this mean?"

&

"Also, my understanding was that the Judge gave me 6 weeks to pay the costs (5th Sept) and yet this letter states 5th October!...so which is the correct date to pay?"

Help please.......

Ms Andrist

The way I read those limited terms of the Order, it states you're going to be evicted on 22 August as the landlord has forfeited (ended) the tenancy for non payment of rent. You should only have costs against you if you lose. You need to copy and paste the entire Order word for word, to put those terms/ words in their proper context. You should call the court anyway for confirmation.

[Crazy council]

Re: Suing the Council for wrongful prosecution.

Hi

Sorry just had time to catch up on this. Was there any other wording on the order, suspended possession usually come with dates and terms, i can see some of it on there, just not all of what i would expect..

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Well, Di that is my understanding, and is/was also the understanding of the duty Solicitor who confirmed in a letter following the hearing: 'Legally you are able to stay in your home. The court has made a suspended order for possession. This means that that although a Possession order has been made it has been suspended and will not be enforced so long as you keep to the terms ordered by the judge (ie to pay your current rent PLUS the court costs)'

- - - Updated - - -

I have copied word for word OL....

- - - Updated - - -

CC there was no other wording.....

[Diana M]

Re: Suing the Council for wrongful prosecution.

Well, Di that is my understanding, and is/was also the understanding of the duty Solicitor who confirmed in a letter following the hearing: 'Legally you are able to stay in your home. The court has made a suspended order for possession. This means that that although a Possession order has been made it has been suspended and will not be enforced so long as you keep to the terms ordered by the judge (ie to pay your current rent PLUS the court costs)'

That's my take on it too

Once you've complied with the Order (paid what you're supposed to pay by the date you're supposed to pay it) there's probably no need for any Order after that.

Could this by why the DJ has said it will be dismissed once it becomes "redundant". I'm just working with common sense and logic - not giving you legal advice.

Di

[Openlaw15]

Re: Suing the Council for wrongful prosecution.

Well, Di that is my understanding, and is/was also the understanding of the duty Solicitor who confirmed in a letter following the hearing: 'Legally you are able to stay in your home. The court has made a suspended order for possession. This means that that although a Possession order has been made it has been suspended and will not be enforced so long as you keep to the terms ordered by the judge (ie to pay your current rent PLUS the court costs)'

- - - Updated - - -

I have copied word for word OL....

- - - Updated - - -

CC there was no other wording.....

Ms Andrist, what your duty solicitor states matches section 138, County Court Act 1984 (the law). So if he/ she states the possession order has been suspended it's been suspended. Curiously, as Crazycouncil suggests, there are no terms for the period of the suspended possession order, for instance how long has it been suspended. It still leaves the remedy open to the landlord to enforce the possession order at some point given it's been made. Ok, it makes sense to assume there is no suspension period because it's talking about a future matter, ie if you were to have problems with paying your rent in the future. However, overall the drafting of that Order was very misleading, so I agree with you. It could literally have been interpreted any way. It seems to me to be saying, yes the landlord is right to claim his rights based on law, but the judge has chosen to exercise his section 138 discretion (based on equity). This is why you have to pay the costs: s.138.

[Diana M]

Re: Suing the Council for wrongful prosecution.

what your duty solicitor states matches section 138, County Court Act 1984 (the law). So if he/ she states the possession order has been suspended it's been suspended.

Which is what I said too

An appeal to the High Court (your suggestion) of a Suspended Possession Order runs the risk that the Order could be 'un-suspended' when looked at by a fresh pair of legal eyes.

Di

[Diana M]

Re: Suing the Council for wrongful prosecution.

Ms Andrist

The law is that you can still make a claim to recover possession once you've been evicted if you pay the debts off within 6 months.

If you made the claim against the landlord you're the claimant, and vice versa the landlord. I assume you're the defendant and the landlord the claimant.

The Order is saying that you (defendant) have 10 days from now to leave the property, which is very harsh, as the County Court (is it the County County) has what it called a discretionary power (equitable jurisdiction, means fair) to delay possession 'as it thinks fit.' It also has the discretion to postpone (delay) delay possession and allow you to pay off your debts up to 6 months.

Forfeiture for non-payment of rent

I think the 'forfeiture' clause issue now is very live/ relevant now. Is there is a forfeiture clause in your tenancy contract terms/ covenant? Look at this barrister's article for the unfair use of 'forfeiture' for non payment of rent: http://www.landmarkchambers.co.uk/us...ber%202014.pdf

Also look at section 138, County Court Act 1984. This is area of law is a very technical land law issue for tenancy contracts.

I think the County Court may have abused its power therefore and you could possibly appeal on a point of law. Abused its powers because it had discretion to extend the delay for possession for at least 6 months in this forfeiture proceeding, but has chosen to not to (ie abuse of discretion). Have you tried to get legal aid for this type of situation? Does the Order go on to say that you have permission to appeal? It's normally 21 days for appeals. I think the next port of call would be an Appeal to the High Court (assuming this is an Order from the County Court), as an appellant court (ie you will be the appellant).

"Section 138, County Court Act 1984

Forfeiture for non-payment of rent

138
Provisions as to forfeiture for non-payment of rent.
.
(1)
This section has effect where a lessor is proceeding by action in a county court (being an action in which the county court has jurisdiction) to enforce against a lessee a right of re-entry or forfeiture in respect of any land for non-payment of rent.
.
(2)
If the lessee pays into court [F1or to the lessor]not less than 5 clear days before the return day all the rent in arrear and the costs of the action, the action shall cease, and the lessee shall hold the land according to the lease without any new lease.
.
(3)
If—
.
(a)
the action does not cease under subsection (2); and
.
(b)
the court at the trial is satisfied that the lessor is entitled to enforce the right of re-entry or forfeiture,
.
the court shall order possession of the land to be given to the lessor at the expiration of such period, not being less than 4 weeks from the date of the order, as the court thinks fit, unless within that period the lessee pays into court [F1or to the lessor]all the rent in arrear and the costs of the action.
(4)
The court may extend the period specified under subsection (3) at any time before possession of the land is recovered in pursuance of the order under that subsection.
.
(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F1
.
(6)
Subsection (2) shall not apply where the lessor is proceeding in the same action to enforce a right of re-entry or forfeiture on any other ground as well as for non-payment of rent, or to enforce any other claim as well as the right of re-entry or forfeiture and the claim for arrears of rent.
.
(7)
If the lessee does not—
.
(a)
within the period specified in the order; or
.
(b)
within that period as extended under subsection (4),
.
pay into court [F1or to the lessor]—
(i)
all the rent in arrear; and
.
(ii)
the costs of the action,
.
the order shall be [F2enforceable]in the prescribed manner and so long as the order remains unreversed the lessee shall [F3, subject to subsection (8) and (9A),]be barred from all relief.
(8)
The extension under subsection (4) of a period fixed by a court shall not be treated as relief from which the lessee is barred by subsection (7) if he fails to pay into court [F1or to the lessor]all the rent in arrear and the costs of the action within that period.
.
(9)
Where the court extends a period under subsection (4) at a time when—
.
(a)
that period has expired; and
.
(b)
a warrant has been issued for the possession of the land,
.
the court shall suspend the warrant for the extended period; and, if, before the expiration of the extended period, the lessee pays into court [F1or to the lessor]all the rent in arrear and all the costs of the action, the court shall cancel the warrant.
[F4(9A)
Where the lessor recovers possession of the land at any time after the making of the order under subsection (3) (whether as a result of the enforcement of the order or otherwise) the lessee may, at any time within six months from the date on which the lessor recovers possession, apply to the court for relief; and on any such application the court may, if it thinks fit, grant to the lessee such relief, subject to such terms and conditions, as it thinks fit.
.
(9B)
Where the lessee is granted relief on an application under subsection (9A) he shall hold the land according to the lease without any new lease.
.
(9C)
An application under subsection (9A) may be made by a person with an interest under a lease of the land derived (whether immediately or otherwise) from the lessee’s interest therein in like manner as if he were the lessee; and on any such application the court may make an order which (subject to such terms and conditions as the court thinks fit) vests the land in such a person, as lessee of the lessor, for the remainder of the term of the lease under which he has any such interest as aforesaid, or for any lesser term.
.
In this subsection any reference to the land includes a reference to a part of the land.]
(10)
Nothing in this section or section 139 shall be taken to affect—
.
(a)
the power of the court to make any order which it would otherwise have power to make as respects a right of re-entry of forfeiture on any ground other than non-payment of rent; or
.
(b)
section 146(4) of the M1Law of Property Act 1925 (relief against forfeiture)."

I've now had the time to read all through your above post (and associated posts) and the link you provided to Landmark Chambers' view on "Forfeiture" within it.

What you (and Landmark Chambers) are saying specifically relates to Freeholder and Leaseholder legal issues not rental agreements. Point 14 (Landmark Chambers) notes that none of the advice relates to Assured Tenancies. The OP has an Assured Tenancy.

The focus of the advice is on commercial leases not residential ones. Albeit there's a legal nod towards residential leases over 21 years (at the outset).

I can see how it could be confusing because of the legal vocabulary which refers to a Freeholder as a "Landlord" and a Leaseholder as a "Tenant" but the legal remedies for breaches are miles apart from Landlord/Tenant issues in the rented sector.

The bottom line is "Forfeiture" does not apply to rented properties - it only applies to Freeholder/Lessee situations.

Di

[Crazy council]

Re: Suing the Council for wrongful prosecution.

[MENTION=77627]Openlaw15[/MENTION] what on earth are you on about, ( don't answer because am not interested in responding on this matter )

hi [MENTION=87701]Ms Andrist[/MENTION]

I had a few colleagues look at this over the past 2 days to ask there opinion on a matter, mostly, in relation to the best way to protect yourself from a LL thats seems determined to end your tenancy, I will write it up when we finnish chatting later this evening.

Both said the wording on the suspended possession seems odd and to make sure its not a possession order ( you did that, confirming it in a letter from the court ). One of them explained it in a way were it seems the judge has acted properly and correctly over the costs

With section 8 notices, you need to be in at least 8 weeks arrears at both the service of the notice, and the court date, ( you was at the service, but had paid by the court date ). That would have costs the LL up to that stage, even if he withdrew, so the judge may have just been assuring that the LL was not out of pocket. The suspended possession terms, seem to basically just say, that if the next payment of rent is on time, and there not arrears, the orders over. ( there possibly the easyest terms for a TT we have seen ), and is the fastest way for the judge to satisfy both TT and LL appropriately,

If the above is correct, and its sorted now ( apart from your costs ), perhaps its time to be a bit more proactive to deal with the LL. Your length of tenancy and amount of rent, suggest that you may have paid a significant portion of the property value over the time, most judges will account for that. One of the questions in all our minds is what would be your LLs intent, ie

Just to increase the rent to up there %
To increase the rent to get you out for another puropose

If its option 2, and that other purpose is redevelopment or sale.... there maybe some things for you to consider, but were not quite sure how it would relate to your specific tenancy at the mo, but we all think it does.

Also, did you pay a deposit, interst may be due on that at the end of the tenacy.

[Ms Andrist]

Re: Suing the Council for wrongful prosecution.

Crazy (and everyone) thank you for your input. The purpose is to get me out so that so that the LL can knock through from HIS/THEIR flat to my dressing room...and to rip the kitchen out and install a spiral staircase up to their OTHER super -flat above me.
Applying great financial pressure (presently trying to put the rent up again) when I endured the vulnerability of the Council case has ensured I am in their clutches