Page 75 - Solving Housing Disputes

better understand their rights and responsibilities as the case goes through the
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courts.” In our view, these developments are an opportunity to fundamentally
reconsider how private landlords and tenants engage before a possession claim
is initiated.

3.34 The pre-action protocol for social possession cases requires a housing provider
to make good faith inquiries as to why, for example, a tenant is falling into
arrears. The premise is good faith dialogue, and constructive discussion on the
issues giving rise to problems in the tenancy. In our view, the desire to establish
longer term, more sustainable relationships between tenant and landlord in the
sector should inspire similar dialogue between private landlords and tenants
before possession claims are initiated. The reform of statutory grounds for
possession presents an opportunity to require that activity in pre-litigation
behaviour. One way to do so would be the introduction of a simple pre-action
protocol for private possession claims, designed with the needs of non-legally
represented landlords in mind. This might be a protocol that amounts to a
checklist, with a list of actions a landlord is required to carry out before initiating
proceedings. These could include:

• a requirement to contact the tenant to find out what the cause of rent
arrears is;
• a requirement to negotiate with the tenant to secure repayment; and/or
• issuing an email or letter demand for repayment within a specified
timeframe.

3.35 That protocol could be issued to a tenant with the bundle of documents issued
at the commencement of a tenancy, explaining the steps a landlord would have
to go through before they can attempt possession. Alternatively, prior to
initiating a claim, private landlords could potentially be required to engage with
the problem-solving requirements set out in the social possession protocol. We
recommend that the Civil Procedures Rules Committee (CPRC) should
consider whether a simple, easy to follow pre-action protocol for private
possession claims should be established as part of reforms under the
Rented Homes Bill. That pre-action protocol would capture the spirit of
the social housing possession pre-action protocol and encourage landlords

198 The guidance will be delivered by HMCTS for private landlord possession cases by August 2020,
MHCLG, note 196 above, para 1.19.

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