Tips for defending introductory tenants – shining Armour?
Defending introductory tenants where court proceedings for possession have been issued can look tricky.
It all looks so easy for the Council landlord. All they have to do is serve a preliminary notice and consider any request for a review. Then, if the review is decided against the tenant, the landlord can issue court proceedings. If the paperwork is in order, the court has no discretion, and must make a possession order.
This gives those representing an introductory tenant limited scope. However, as my colleague Giles Peaker made clear in a recent seminar, the recent case of Southend on Sea BC v Armour [2014] EWCA Civ 231 might in some cases give tenants a defence to possession proceedings even when all else has failed. In Armour the court re-iterated that it should only make a possession order if it is “proportionate” within the meaning of Article 8 of the European Convention on Human Rights. So, in Armour the court said:
[30]… “Where, as here, the tenant under an introductory tenancy gets off to a shaky start, but mends his ways for almost all of the one year period, I consider that that improvement in behaviour is capable of being a factor in deciding whether it is disproportionate for the landlord to continue to insist on recovering possession. What weight to give it is a question for the trial judge. …”
With this in mind, here are some tips for advisors wanting to use Armour where conventional defences have failed:
- Has the landlord complied with its own policy towards introductory tenants in the decision to proceed to possession?
- If the introductory tenancy was terminated because of rent arrears, are the arrears really the tenant’s fault, or are they the result of housing benefit failures?
- Is the tenant vulnerable in some way, for example a care leaver? Or is a member of the tenant’s family vulnerable? If so, has the landlord complied with its other duties towards the vulnerable tenant/member of tenant’s family?
- Has the tenant mended his/her ways either since service of the notice, or since the review was carried out, or since the court proceedings started?
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- If the termination was on the grounds of rent arrears, has the rent now been paid regularly, and have the arrears reduced?
- If the termination was on the grounds of anti-social behaviour (as in Armour) has the behaviour ceased or improved?
- If the reason for terminating the introductory tenancy was rent arrears, is there a counterclaim by way of set-off for disrepair? Before Armour, disrepair defences were of limited use in introductory tenancy cases. However, Armour might allow such issues to be raised to persuade the court that it is not necessary or proportionate to make a possession order.
- Would eviction have a particularly severe impact on this particular introductory tenant?
I’m not going to pretend that these defences will always work, or even often work, and the threshold is still very high. However, when the stakes are this high, and the tenant has nothing to lose, it will always be worth raising any of these issues if possible.