10:20 AM, 5th December 2018, About 3 years ago 1
Fergus Wilson: “The following is an extract from a letter from my MP, Helen Whately, dated 16th November, 2018, followed by response dated 29th November 2018″
The extracts read:
I wrote to the Rt Hon David Gauke MP, the Lord Chancellor, about the way in which disrepair cases are heard in the courts and will let you know when I have had a response.
Can I ask you to ensure The Lord Chancellor has the full picture? The situation is that if a Local Authority issues a Housing Act 2004 Notice the matter will be heard in the 1st Tier Property Tribunal where at least one of the Tribunal Members will be an “Expert Witness”. The Chairman will be a “Property Solicitor or Barrister” and the third a Lay Member.
That is absolutely fine and the case will probably be heard far earlier than it would be in the County Court.
What so often happens is that the Landlord will bring a claim for Non Payment of Rent. Now there is No Defence to not paying the rent, but the tenant will be encouraged to bring a Counterclaim which is spurious in nature and usually relates to an allegation of a non-working boiler.
In order to adjudicate on such a claim the Judge needs to hear evidence from an Expert Witness! What is meant by an Expert Witness?
It is defined as a Fellow of the Royal Institute of Chartered Surveyors who is on the Expert Witness List.
These Counterclaims against a Non Payment of Rent Claim Case invariably have no Expert Witness.
If the Landlord is lucky then he will have a Deputy District Judge who is a Property Solicitor who is extremely knowledgeable about Boilers. However, most of the time the Landlord will end up with someone who starts by saying “I know nothing about Boilers…”
The Landlord is then in considerable trouble!
Please point out to the Lord Chancellor that that there is such an animal as the 1st Tier Property Chamber and any Counterclaim for a Boiler Disrepair, or Condensation, or whatever should be heard in the 1st Tier Property Chamber in the first instance and that Chamber is considered the Court of First Instance.
The HHSRS should be used (Hazard Health and Safety Rating System) and the case should be heard under the provisions of the Housing Act 2004 and not the Environmental Protection Act 1990 which is for Polluting the Environment not Domestic Boiler disrepairs.
I now turn to the time it takes to obtain possession which Kevin Hollinrake MP says is 22 weeks on average! I have had one taking 30 weeks.
The whole idea was an Accelerated Possession Procedure without a hearing! It has become a joke! There is absolutely nothing accelerated about it!
There is a most definite need for a Housing Court to deal with all Housing Matters! Particularly I single out Applications for Possession under the Accelerated Possession Procedure.
The First Tier Property Chamber sits in County Court Courts these days and there is plenty of surplus accommodation, as so many courtrooms stand empty, as the County Court cannot find Judges!
So what am I saying? In essence the Property Tribunal with its Members should run side by side with the County Court Judges, listed in the same building, and all housing matters should be dealt with by the Tribunal which is Chaired by a District Judge who can deal with Possession Applications.
The whole idea is this. If the paperwork is in order then the District Judge has to make a 14 day Possession Order. Within that 14 day period the tenant can apply for a hardship hearing but if it does not succeed possession can be applied for on the 15th day.
Whether the Landlord uses a High Court Sheriff to obtain possession is a matter for the Landlord.
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