I recently wrote a blog about the perils of section 8 proceedings. The real problem for landlords is that where the Court has a discretion to make an order it creates uncertainty. This is almost always the case where a tenant alleges disrepair in response to a claim for possession based upon rent arrears.
When these cases come before a judge at the first hearing, the judge can either decide the claim (dismissing it or ordering possession) or will give directions for a full hearing. The latter choice can have expensive consequences for a landlord who could have to accomodate a non paying tenant for several months before the case goes to a full trial.
Therefore, it is important to know in what circumstances a judge is likely to refer the claims for a trial. Under Rule 55.8 (2) of the Civil Procedure Rules a claim that is genuinely disputed on grounds which appear to be substantial should be referred for a full trial. This is not a particularly high threshold to satisfy and therefore the evidential burden on the tenant alleging disrepair is quite low.
An example of this was the recent case of Kinnear v Whittaker [2011] EWHC 1479 (QB) which ended up in the Court of Appeal. In the summary hearing a possession order had been made against the tenant by the judge on the basis that the proprietary estoppel defence which had been advanced was defeated by the lack of the required statutory formalities (ie to get an interest in land it has to be given in writing etc). However, this was overturned in the Court of Appeal on the basis that the defence might work and that there was no conclusive authority that answered the issue in the case.
Proprietary estoppel is a notoriously difficult type of claim to succeed with and the strong inference to draw from this case is that unless a landlord can show that the tenants defence is doomed to fail, then it is time to dig in for a longer fight.
