Nearly Legal

Registered with Property118.com
Thursday 7th January 2016

Insures properties through a broker recommended by Property118
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Latest Comments

Total Number of Property118 Comments: 13

Nearly Legal

11:44 AM, 22nd March 2016
About 4 years ago

HCEO's What has been your experience?

Reply to the comment left by "Robert Mellors" at "21/03/2016 - 23:25":

Not sure about unlawful eviction per se, as it was on the basis of a lawful writ. However, as the writ was obtained by an abuse of process - falsely stating that it was against trespassers - I could see possible claims in derogation from grant and breach of quiet enjoyment.... Read More

Nearly Legal

21:10 PM, 9th February 2016
About 4 years ago

HCEO's What has been your experience?

More on the whole 'use of N293A' thing coming soon. Can't give details yet, but hopefully not long.... Read More

Nearly Legal

17:14 PM, 15th January 2016
About 4 years ago

HCEO's What has been your experience?

Reply to the comment left by "David Carter" at "15/01/2016 - 15:23":

PS - the form would be an N244 - standard application form.... Read More

Nearly Legal

16:35 PM, 15th January 2016
About 4 years ago

HCEO's What has been your experience?

Reply to the comment left by "David Carter" at "15/01/2016 - 15:23":

Hi David

Perhaps slight cross purposes here. I completely agree that possession orders against tenants can be transferred up by an application under section 42, and the MoJ guidance on that is fine. No argument there at all.

But neither s.42 nor the MoJ guidance say anything about then using N293A to apply for a writ. There are other ways of applying for a writ apart from N293A. For example that form would be no good for either a writ of delivery or a writ of restitution. There aren't specific forms for every kind of application. I'm not sure that 'there isn't another form for a writ of possession against tenants' will get you very far.

The issue of abuse of process comes down to CPR 83.13(2) For the issue of a writ of possession against tenants, the court's permission is required. That means permission from a High Court Judge, not stamping by the court office.

Using a form which certifies it is for a writ against trespassers, when it is not, and that therefore the Court's permission is not required, when it is, would be an abuse of process regardless of whether it was intended to be, or was done in good faith. It doesn't matter whether you meant to get round the permission requirement or you didn't and genuinely thought it was the right thing to do.

We will see what the Senior Master's guidance says when it comes. But might I suggest being cautious in the meantime, given that there is clear notice of the potential issues and the potential risk to client landlords.... Read More