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Disputing the Ground

Defences

Disputing Ground 3

Please follow the steps below for more information relating to ‘disputing the ground’

Ground 3

Disputing Ground 3

What does the Ground Say?

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Ground 3 – Explanation

The landlord can issue a claim for possession under this Ground if:

If the tenant or a person residing in the property has caused the condition of the property or the common parts to deteriorate. (This includes damage cause due to failing to prevent the damage. For example, if the tenant did not report a leak in the property)


Meaning of common parts: areas of the building that is shared between the two or more tenants that live in the building


Discretionary Ground – Has to be reasonable to grant possession

As this is a discretionary ground, even if it is proved that there is some rent due, the court must still decide whether it is reasonable to grant possession.

How It Works

Full Defence

Possible Dispute 1

The condition of the property or the common parts did not deteriorate

1 – What does this mean?

Explanation

From the point of the commencement of the tenancy up until the notice seeking possession was served upon the tenant there was no deterioration of the condition of the property or the common parts.

2 – Evidence

Evidence Required


a) Evidence of the condition of the property prior to the commencement

b) Evidence demonstrating the landlord’s awareness of the condition of the property prior to the commencement of the tenancy

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

Full Defence

Possible Dispute 2

The condition of the property or the deteriorated but the tenant and/or a person residing in the property did not cause such deterioration

1 – What does this mean?

Explanation

It can be argued that although there was deterioration tot he condition of the property, that the tenant or a person residing in the property were not the cause of such deterioration to the condition of the property as claimed by the landlord.

2 – Evidence

Evidence Required

a) Evidence demonstrating that the condition of the property deteriorated due to another cause. For example, if there is damp in the bathroom, this could be due to the fact that the extractor is not effective, and not due to the tenant running hot water.

b) Evidence demonstrating that another person that is not the tenant nor a person residing at the property that caused the condition of the property to deteriorate. For example, it could be that the upstairs neighbour has caused leaks that damaged the wall in the tenant’s property.

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

Full Defence

Possible Dispute 3

Disputing the ‘common parts’ allegation: that the condition of the common parts deteriorated but the tenant and/or a person residing in the property did not cause such deterioration

1 – What does this mean?

Explanation

It can be argued that although there was deterioration tot he condition of the ‘common parts’, that the tenant or a person residing in the property were not the cause of such deterioration to the common parts as claimed by the landlord.

2 – Evidence

Evidence Required

a) Evidence demonstrating that the condition of the property deteriorated due to another cause. For example, if there building door lock is no longer working, this could be due to the fact that lock is of poor quality and the continues use of the door by visitors to the building has caused the lock to break, and that this was not due to the misuse of the tenant or a person residing in the property.

b) Evidence demonstrating that another person that is not the tenant nor a person residing at the property that caused the condition of the property to deteriorate. For example, it could be that the upstairs neighbour has closed the smashed the building door while closing it, causing the building door’s locks to break

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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Possible Outcomes of advancing a full dispute

Below are some of the most common outcomes following a full dispute being made by Defendants in possession hearings (the tenants)

What is the effect if the Court Accepts my dispute within the hearing?

If the court finds that there is enough evidence to prove the Defendant’s full dispute of teh claim, or a lack of evidence to prove the landlord’s claim, then the Court can dismiss the Claim and find in favour of the Defendant (the tenant) retaining possession of the property.

What happens if the court does not accept my dispute within the hearing itself but ‘finds that the claim is ‘genuinely disputed on grounds which appear to be substantial‘?

The Court will direct case management directions which puts into motion the process leading upto a trial of the claim. For example:

a) An order for the Defendant to File a full defence

b) An order for the Defendant and Claimant to exchange Evidence

c) To set a trial date

d) ….. other orders as may be appropriate in the lead up to a trial of the claim

What happens if the court does NOT accept my dispute within the hearing and does NOT find that the the claim is ‘genuinely disputed on grounds which appear to be substantial‘

a) The Court could then hear arguments relating to whether it would be ‘reasonable’ to grant possession even if the landlord was able to prove the ground and the tenant’s full dispute to the claim was unsuccessful

or

b) If the tenant does not advance arguments relating to whether it would be ‘reasonable’ to grant possession, the court would then make its own finding on reasonableness and then either

i. Grant Possession to the landlord (the Claimant) if it finds it reasonable to grant possession

or

ii. Dismiss the possession claim and find in favour of the tenant retaining possession of the property

or

iii. The court can make other orders that might be suitable to the circumstance of the case which do not involve immediately granting possession. to the landlord, for example: Adjournment of the proceedings with or without conditions and suspended possession orders.