Do you complete court forms for your landlords? You could be in contempt of court

For as long as I can remember, letting agents have undertaken issuing notices such as Section 21 and Section 8s and then continued to complete the court application form for their landlords.

Personally I have also shied away from the form filling, this is for 2 reasons

• 1    I don’t like form filling with the added headache of 3 lots of papers
• 2-      I knew legally I couldn’t do that work

A recent High Court ruling in Baxter v Doble & Anor highlights the need for caution among agents when choosing to undertake eviction work in the course of their daily property management work.

When we think of legal work, such as litigation, and the roles of solicitors we think of attending court and standing up in front of a judge, we don’t necessarily think that simply completed some forms could be a detrimental act.

So, lets break this down,

What is Litigation

Litigation is the process of an individual or a business taking legal action against one or more parties to resolve a dispute, Litigation is a reserved activity.

Various principles were outlined to help judges decide what does and does not amount to the conduct of litigation.

The court made its decision in accordance with those principles –  it was held that some of the activities carried out were consisted of the conduct of litigation. 

The list of such activities a include all of the following:

• Filing the claim form and particulars of claim.
• 
  
• Serving the reply and defence to counterclaim on the other party.
• 
  
• Payment of the court fee of £355 by cheque from the respondent’s account, having been put in funds in advance by the claimant.
• 
  
• Giving of instructions to an advocate.
• Drafting of witness statements.
• 
  
• Drafting of an application notice.
• 
  
• Drafting of a draft order for a strike-out application.
• 
  
• Drafting of the reply and defence to counterclaim.
• 
  
• Drafting of the case management summary for the CMC.

It has been held in other cases that serving a claim form and particulars of claim do amounted to the conduct of litigation.

Who can litigate

A person who is authorised ( eg: a registered and regulated solicitor)

So, to be clear serving section 8 or section 21 is NOT deemed to be conducting litigation, but if the agent then goes on to help the landlord complete the N5b or any other type of possession claim form including PCoL or completes it on landlords behalf, they will be, Under the Legal Services Act 2007, committing an offence to carry out a reserved activity without being an authorised person.

At paragraph 4, Schedule 2 to the 2007 Act ‘conduct of litigation’ is defined as

“Conduct of litigation

4 (1)The “conduct of litigation” means—

(a) the issuing of proceedings before any court in England and Wales,

(b) the commencement, prosecution and defence of such proceedings, and

(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).

Agents who chose to complete these claim forms leave themselves and their landlord open to having the possession claim struck out and at worse be found in contempt of court which carries a sentence of 2 years in prison.

It is not worth trying to complete these forms and agents are encouraged to form partnerships with local solicitors who will take on this work once the section 8 or section 21 has expired

Baxter v Doble & Anor (2023) https://www.bailii.org/ew/cases/EWHC/KB/2023/486.html

What is a tenancy?

When working in, or researching the rental sector we come across the word ‘tenancy’ all the time.

We all make the similar assumption that tenancy means the type of rights and/protection someone has in a property.

More often than not, we associate tenancy with Assured shorthold tenancies (AST)  in particular.

 

However, the fun fact here it that ALL types of let are in fact tenancies, it is then down to the circumstances surrounding the let that determines what level of protection from eviction and rights the occupant has.

 

The science bit:

Let’s start with the origin of the word tenure.

In Middle English it’s called tenure.

In Latin  *tenitura, from *tenitus,  tentus (from teneō) + -ura.

 

All of these meaning the same thing:-

the conditions under which land or buildings are held or occupied

 

So how many types of tenure are there?

·       Owner

·       Leasehold

·       Secure 

·       Protected

·       Assured

·       Assured shorthold

·       Basic occupier

·       Excluded occupier

 

Each of these tenancies rely on the law and case law to establish how they will be created.

 

Owner is simple to explain, the interest in land is owned outright by the person.

They have the title to the property, they pay the taxes and rates

 

Leaseholders are in fact tenants, they may only ever own the lease and not the building so live in the property as tenant to the freeholder/owner. The lease is for a set period of time normally 99 or 125 years. Unless the leaseholder makes arrangements to extend it, once the lease ends, ownership of the property returns to the freeholder.

 

Secure and protected provide the occupants the highest level of security without owning any part of the property or its lease.

Defunded by Part 4 of the Housing Act 1985

Secure and protected tenancies are normally issued by local authority and are much less common now

Eviction generally required the tenant to have breached the contract 

 

Assured / Assured shorthold

As defined by   s.1(1) Housing Act 1988

An assured tenancy is defined as a tenancy of a dwelling-house let as a separate dwelling to an individual, who is a single (sole) or joint tenant, where the tenant or at least one of the joint tenants occupies the house as their only or principal home

Assured and ASTs are in principle the same, except an AST allows the landlord to issue a no fault notice, known as s21

 

But to evict an assured tenant you will normally require them to ah w breached the contract 

 

Basic occupier /Excluded occupier

Most tenants are protected by either the:

·       Rent Act 1977 (regulated tenants)

·       Housing Act 1985 (secure tenants)

·       Housing Act 1988 (assured and assured shorthold tenants)

 

If a tenant does not come within the protection of one of these Acts or another statute giving security of tenure, they are either an occupier with basic protection or an excluded occupier.

Under the Protection from Eviction Act 1977 occupiers with basic protection cannot be evicted without a court order. A landlord must follow the correct procedure to evict an occupier with basic protection.

 

Excluded occupiers however do not have protection from eviction and are not subject to Protection from eviction act 1977

The most common example of his are

 

·       people sharing accommodation with a resident landlord

·       people renting holiday lets

 

So when embarking on renting a property, it is worth doing some research to ascertain what type of tenancy you will be embarking in and what legal requirements you have as a landlord but also what rights and protections your tenant may also have.