Rent arrears

The CPR Pre-Action Protocol for Possession Claims Based on Rent Arrears came into force on 2 October. Hitherto where the court has a discretion as to whether or not to order possession, the steps which a landlord has taken to make the tenant aware of the arrears has been relevant as to whether it is reasonable to order possession. However, the pre-action protocol sets out what steps must be taken before issuing proceedings and the consequences of failure to comply. The protocol applies to residential possession claims brought by social landlords such as local authorities, registered social landlords, and Housing Action Trusts. It does not apply to claims in respect of long leases or where there is no security of tenure. The protocol requires a landlord to contact the tenant as soon as possible if the tenant falls into arrears, and to discuss the cause of the arrears, the tenant’s financial circumstances and the tenant’s entitlement to benefits and repayment. The landlord should try to agree with the tenant an affordable sum for the tenant to pay towards the arrears. It also affords protection to vulnerable tenants including those with difficulty in reading or understanding information, it requires the landlord to consider whether a tenant who is under 18 or particularly vulnerable has the mental capacity to defend possession proceedings, and if not make an application for a litigation friend under CPR rule 21; the landlord must consider whether the Disability Discrimination Act 1995 would provide a defence to the tenant and also consider whether or not there is a need for a community care assessment under the National Health Service and Community Care Act 1990. Failure by a landlord to comply with the protocol may result in an order for costs or, in cases where the court has discretion, the adjournment, striking out or dismissal of the claim.