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Unreasonable to order possession

Please follow the steps below for more information relating to the defence of ‘unreasonableness’

Ground 1

Unreasonableness

What does the Ground Say?

lottie integration

Ground 1 (Breach of Obligations) – Explanation

a) The Ground can be claimed under if any of the tenant’s obligations in the tenancy agreement have been breached.

b) This Ground can be claimed alongside other Grounds, a breach of an obligation could trigger this ground and could also trigger another relevant Ground. For example, it might state in the tenancy agreement that the tenant must keep maintain the condition of the property, a breach of this requirement could trigger this Ground: Breach of an obligation of the tenancy and could also simultaneously trigger, Ground 3 which is a ground specific to the tenant’s failure to keep the property in a good condition.

c) The Defence such a breach can be advanced as a defence to both triggered grounds, so there is no separate type of format of Defence in relation to each independent triggered ground as they are founded upon the same nature of facts.

Potential factors which the court might consider when determining whether it would be reasonable to grant possession even if the Ground is proved by the landlord

DISCLAIMER: Below are some examples of factors commonly raised at Court, however, this factors below are just some example, and are non-exhaustive. The Court may consider a wide and unlimited variety of factors.

How It Works

Unreasonableness

Common Factor relating to Reasonableness (1)

The breach was an isolated incident

1- What does this mean?

Explanation

The tenant may argue that the breach, whether it was damage to property, nuisance or annoyance was an isolated incident and unlikely to recur. Also, by explaining that the isolated incident was driven by special circumstances which will not be repeated, for example: throwing a party which has led to the damage to walls in the property.

2- Evidence

Evidence Required

a) Proof of that the is incident arose out of a one-time and isolated breach
b) Proof that there has never been such a breach or incident prior the one being claimed.

3 – Advancing Defence

Outline in Defence Form
or at Court

If the time limit for filing the defence has not passed, you need to clearly outline this defence, obtain the necessary evidence, attach the evidence and refer to the attached evidence in the defence form when you are explaining your dispute.

If the time limit for filing the defence has passed, then you need prepare. a written draft of your reasons for the dispute, obtain the necessary evidence and bring it to court and be prepared to advance all such information to the Court Duty adviser, to the opposition, and to the Judge..

How It Works

Unreasonableness

Common Factor relating to Reasonableness (2)

Efforts to remedy the breach

1- What does this mean?

Explanation

The tenant may argue that it would be unreasonable for them to be evicted as a result of the breach due to their efforts and endeavour to take prompt and corrective action to remedy the breach.

2- Evidence

Evidence Required

a) Proof that you have taken steps to remedy the breach.

b) Proof that the breach has been remedied, if it has.

c) Proof that the breach has been remedied or that steps have been taken to remedy the breach promptly.

3 – Advancing Defence

Outline in Defence Form
or at Court

If the time limit for filing the defence has not passed, you need to clearly outline this defence, obtain the necessary evidence, attach the evidence and refer to the attached evidence in the defence form when you are explaining your dispute.

If the time limit for filing the defence has passed, then you need prepare. a written draft of your reasons for the dispute, obtain the necessary evidence and bring it to court and be prepared to advance all such information to the Court Duty adviser, to the opposition, and to the Judge..

How It Works

Unreasonableness

Common Factor relating to Reasonableness (3)

Insignificant breach with no serious harm and which does not justify possession

1- What does this mean?

Explanation

The tenant can argue that the breach is insignificant and thus it would be unreasonable for possession to ordered against the tenant. For example, if the landlord claim for a breach has been that a friend or relative of the tenant, who is not listed as a tenant in the contract, had stayed over at the property for one weekend while he the friend or relative’s house was undergoing repairs . Also, that the tenant does not ordinarily allow others to stay at his property, but this was an exceptional, and unanticipated circumstance for which he will not repeat.

2- Evidence

Evidence Required

a) Evidence of the insignificance of the breach, and the fact that it was very temporary.

b) Evidence that the tenant does not normally engage in allowing such a breach to occur.

3 – Advancing Defence

Outline in Defence Form
or at Court

If the time limit for filing the defence has not passed, you need to clearly outline this defence, obtain the necessary evidence, attach the evidence and refer to the attached evidence in the defence form when you are explaining your dispute.

If the time limit for filing the defence has passed, then you need prepare. a written draft of your reasons for the dispute, obtain the necessary evidence and bring it to court and be prepared to advance all such information to the Court Duty adviser, to the opposition, and to the Judge..

How It Works

Unreasonableness

Common Factor relating to Reasonableness (4)

The tenant is vulnerable and the local authority has treated them unfavourably and has been not assisted in an manner require higher degrees of cooperation in help. Also, the tenant has demonstrates an intention resolve issues relating to missed rent payments.

1- What does this mean?

Explanation

a) If the tenant is vulnerable by reason of: disability, age any other facor which designates the tenant as a vulnerable person;

and

b) the local authority has treated them in manner which does not equate with the high degree of care and support required by theme as a public body;

and

c) that the local authority instead of attempting to cooperate with the assist the vulnerable tenant in resolving or discussing the existence of a breach in a highly supporting manner decides to instigate possession proceedings against the tenant.

Then such series of actions above, might be considered as making it unreasonable to grant possession.

2- Evidence

Evidence Required

a) Evidence of circumstances which make the tenant vulnerable :age, health disability or other circumstances

b) The local authority is awareness of such vulnerabilities

c) The local authority’s lack of appreciation for such vulnerabilities

d) The local authority’s lack of investigation of the tenant’s circumstances

e) that had the vulnerable tenant had the care and support required to be provided to him by the council, he would have been able to resolve issues relating to the breach

f) That the tenant will cooperate with the local authority in resolving any issues relating to the breach

3 – Advancing Defence

Outline in Defence Form
or at Court

If the time limit for filing the defence has not passed, you need to clearly outline this defence, obtain the necessary evidence, attach the evidence and refer to the attached evidence in the defence form when you are explaining your dispute.

If the time limit for filing the defence has passed, then you need prepare. a written draft of your reasons for the dispute, obtain the necessary evidence and bring it to court and be prepared to advance all such information to the Court Duty adviser, to the opposition, and to the Judge..

How It Works

Unreasonableness

Common Factor relating to Reasonableness (5)

The Tenant will suffer extreme hardship if is evicted due to particular circumstances (for example, health, family, vulnerabilities).

1- What does this mean?

Explanation

It might be unreasonable to grant possession, if the tenant will suffer inordinately extreme and severe hardship as a result of the eviction. Also, that such extreme and severe hardship arises out of circumstances particular to the tenant which are unavoidable. Finally, that the tenant will cooperate and engage with the local authority in creating a plan or strategy for addressing the breach. Some examples which would make the tenant suffer extreme hardship if evicted could be:
a) Being made homeless while in a very vulnerable state

b) Being made homeless with children or people that need care

c) Being severely affected by health circumstances that render the tenant unable to withstand eviction

d) Other examples may be applicable

2- Evidence

Evidence Required

a) Evidence of circumstances which make the vulnerable tenant if evicted, unable to withstand the eviction

b) The local authority’s awareness of such impact

c) The local authority’s lack of appreciation for such impact

d) The local authority’s lack of investigation of the tenant’s circumstances

e) The tenant will engage and cooperate with the local authority in reaching an agreement as to how best to proceed with the circumstances he finds himself in



3 – Advancing Defence

Outline in Defence Form
or at Court

If the time limit for filing the defence has not passed, you need to clearly outline this defence, obtain the necessary evidence, attach the evidence and refer to the attached evidence in the defence form when you are explaining your dispute.

If the time limit for filing the defence has passed, then you need prepare. a written draft of your reasons for the dispute, obtain the necessary evidence and bring it to court and be prepared to advance all such information to the Court Duty adviser, to the opposition, and to the Judge..
FAQ
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Potential Orders the Court Can Make in response to a submission of unreasonableness

The Court can make a number of orders following a possession hearing, below are some of the most common orders the Court can make in this regard

1 – Adjournment Generally, with liberty to restore

Adjournment generally with liberty to restore means that the court will halt the proceedings for now, without making a final determination regarding the claim. After, the court has halted the proceedings without making any final orders, it would be for the Claimant to apply to the court in order to restore the proceedings for a final determination.

2 – Adjournment on Terms

Adjournment on terms means that the court will halt the proceedings on the basis of terms agreed between the parties. For example, it could be agreed the court will halt the proceedings on the basis that the tenant pay back £100 every month towards his arrears for 8 months, until he pays back the £800 in arrears. In this case, as long as the tenant complies with the order, the proceedings will be put on hold. However, if the tenant fails to comply with the terms of the agreement i.e fails to pay £100 on the second month of the agreement, then the Claimant would be entitled to restore the proceedings and request another hearing where the Court could consider making a final determination.

3 – Suspended Possession Order

A Suspended Possession order means that the court will order possession but suspend the Claimant’s abilitiy to enforce the possession on the basis that the tenant agrees to comply with the terms of the suspenstion i.e. suspend the possession enforcement on the basis of terms agreed between the parties. For example, it could be agreed the court suspended the ability for the Claimant to commence possession enforcement on the basis that the tenant pay back £500 every month towards his arrears for 4 months, until he pays back the £2000 in arrears. In this case, as long as the tenant complies with the order, the Claimant will not be entitled to enforce possession agains tthe Claimant. However, if the tenant fails to comply with the terms of the agreement i.e fails to pay £500 on the second month of the agreement, then the Claimant would be entitled to make an application to the court (request from the court) to grant the Claimant a ‘Warrant’ for Eviction which could be used to enforce possession against the tenant.

4 – Dismissal of the Possession Claim (Finding in favour of the tenant)

This dismissal of the possession Claim means that the Court does not agree its reasonable to order possession against the Defendant, and the Court does not consider it necessary to place the tenant under terms with the potential of returning back to the court aa sanction which is impending should he fail to comply with any terms. It is the final determination of the matter in favour of the Defendant. Should the Claimant wish to make another claim for possession they will to restart the entire possession proceedings from the start i.e. sending a notice for possession, then issue a claim for possession, and so forth.

5 – Granting Possession to the Claimant (The Local Authority ) – Finding in favour of the Landlord

This granting of possession to the Claimant (The Landlord) means that the Court finds that the Landlord has proved the Grounds for Possession under which they have made the Claim. Also, that the Court finds it reasonable to grant possession i.e. the court considers that there are no circumstances present which would make it unreasonable for the court to grant the Claimant Possession. The Granting of possession is a final determination, which is only subject to judicial appeal if certain requirements are met in order to achieve an appeal hearing. Alternatively, once the Landlord is granted the possession, the Tenant may have one final avenue, which is to suspend the warrant of eviction when and if the Landlord decides to apply tot he court for a warrant to evict you subsequent to being granted the possession order by the court.