Tenant appealing sect 21 possession order and transcript lost?

by Readers Question

9:02 AM, 4th February 2019
About 9 months ago

Tenant appealing sect 21 possession order and transcript lost?

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Tenant appealing sect 21 possession order and transcript lost?

I’m wondering if someone can advise on here in regards to appeals following a possession order made under mandatory ground S21. Essentially I was granted an order for possession back in Nov 2018 for my property under the mandatory S21.

My tenant has appealed this order and was given until Dec 2018 to lodge a transcript of the hearing. I found out in early Jan 2019 that there was a problem with the transcript, it turns out that at the hearing, someone either forgot to press record on the machine or the machine broke, the court can’t establish exactly what! So my paper work and the tenant’s application to appeal was put in front of a circuit judge.

I provided the court will all my evidence, witness statements etc to set a clear picture of why the original order should be up held. I have since been told that the circuit judge who viewed all the paper work has given direction for it now to be heard at another hearing.

Can someone please explain to me whether this is fair and correct ?

Surely, with all the evidence laid out on paper and with the absence of any transcript, the circuit judge could make a decision without it having to go to another hearing?

If the transcript was available I sense this second hearing wouldn’t be happening! I have also since been told that in circumstances where a transcript is not available the tenant is to put together a note of the hearing and work with the landlord to agree it so far as possible. I confirm in my circumstance this has not happened!

As it stands presently, I’m still waiting to hear back from the court to confirm when a hearing date is happening. This is now three months down the line from when I was given the original order.

Any advice would be greatly appreciated.

Alexa



Comments

David Price

10:11 AM, 4th February 2019
About 9 months ago

A correct section 21 must result in a mandatory possession order, how can it be appealed? Why was there a hearing in the first instance?
As far as I am aware the only possible appeal is for an extension in time of up to six weeks.
What were the grounds on which the tenant appealed?

Julie Ford

10:27 AM, 4th February 2019
About 9 months ago

Your tenant can appeal the outright possession if they believe the S21 was not served correctly for some reason.
They also appeal if the court made an error on the original possession order, this is called the slip rule.
A tenant can also request a hearing for a S21 possession to request an extention of the evict term of up to 42 days.
The court should have provided you with your tenants defence, contact the court and ask for the court bundle

SophieB

10:39 AM, 4th February 2019
About 9 months ago

Reply to the comment left by David Price at 04/02/2019 - 10:11
Hi David

Thanks for your message. Basically we went to court on both S8 & S21 grounds. As the tenant is separately trying to sue me the money claims court (won’t go into those details, he’s basically a vexatious litigant) the court wouldn’t take into consideration the arrears so I won possession under S21.

The tenant’s appeal paper work basically is trying to say he didn’t receive an EPC or the ‘ How to rent’ booklet however, I’ve sent evidence to the court that he did receive these. His only other ground for appeal is he’s using the European Convention on Human Rights namely article 6 & 13 & also Article 47 of the EU charter of Fundamental Rights. He’s saying his rights have been violated and that he didn’t get a fair trial at the first hearing !

SophieB

10:46 AM, 4th February 2019
About 9 months ago

Reply to the comment left by Julie Ford at 04/02/2019 - 10:27
Hi Julie

Thanks for your message, further details as per my reply to David.

Basically I don’t think there’s any faults with the original paper work or the court’s original decision and also the tenant was given a 35 day possession instead of the usual 14 days.

rusty

18:25 PM, 5th February 2019
About 9 months ago

Hi,does anyone know anything about getting an awkward exes name off the tenancy via court,,,what's the costs? Routine? Ta russ

LiamG

10:35 AM, 9th February 2019
About 9 months ago

Do you think that, maybe, given that your case has now reached the point that you are facing a hearing before a Circuit Judge, it might be a good idea to speak to a lawyer?

It's unclear whether the tenant in your case has been refused permission on the papers and now is (as is their right) seeking to renew that application orally - or whether the tenant has been granted permission and now the case is coming on for a full hearing. That could be quite important because if permission has been granted, it suggests things are not as "vexatious" as you claim. It's also unclear whether anything has happened which is suspensive of the possession order and stops you from enforcing it even whilst the appeal proceeds.

You need to go and sit down with someone who can advise you on your rights and how to proceed.

SophieB

15:12 PM, 10th February 2019
About 8 months ago

Reply to the comment left by LiamG at 09/02/2019 - 10:35
Hi Liam

Thank you for your message.

I was using a solicitor originally but was v unhappy with their services so had to dis instruct.

At present, the next hearing which I’ve now received a date for in March is a permission to appeal hearing, in front of a CJ.

My tenant’s only ground for appeal is under article 6 of the European Court of Human Rights as his other argument that he didn’t receive the EPC or How to Rent booklet have been proven wrong, as I have his signature to prove he received these documents.

The system does not seem correct and I feel had the transcript been in place, this second hearing wouldn’t be happening.

As a landlord, aren’t I also entitled under section 89 of the housing act 1980 to a right to have my property back? Given that I have a mandatory possession order, and that at the first hearing my tenant was correctly represented with his own solicitor so how can he try and use the Huamn Rights grounds that he didn’t get a fair trial in the first hearing?

SophieB

15:23 PM, 10th February 2019
About 8 months ago

Reply to the comment left by LiamG at 09/02/2019 - 10:35
I forgot to also mention that my tenant is in breach of a number of terms of his tenancy agreement, he’s in arrears to the tune of 3k, he’s moved a dog into property without permission and he’s also continuing to harass and cause anti social behaviour to his neighbours around him.

The reason why I had to serve a possession order on him in the first place was due to anti social behaviour and me being served with a S146 Notice which, then started this whole snow ball of him on the attack against me. With him starting a money claim against me purely because he wants revenge and doesn’t want to have to leave the property.

SimonR

15:53 PM, 15th February 2019
About 8 months ago

SophieB, you really are at the point of needing a solicitor alternatively contact Paul Shamplina at Landlord Action, they know their stuff


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