Page 76 - Solving Housing Disputes

and tenants to work together on a solution to the dispute without recourse
to a formal possession order.

3.36 Private rental possession claims are not the only area where our Working Party
considers more could be done at the pre-action stage. Judges on our Working
Party cited issues that arise where creditors enforce charging orders against a
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debtor by applying to the court to obtain possession before selling the home.
Where a debtor chooses to enforce a charging order, those residing in the house,
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as well as the debtor, are affected.

3.37 Our Working Party is concerned that particular attention should be paid prior to
enforcement of a charging order as to the individual circumstances of tenants
and family members should the sale of the property be requested. In particular,
the desire must be to minimise any hardship for those living in the house caused
by the sale. For that reason, we recommend the establishment of pre-action
requirements before an application for enforcement of a charging order is
brought. Those requirements, whether under protocol or otherwise, should
require a creditor to engage proactively with the debtor and those in the
household, to assess whether enforcement will bring hardship and if so, to
contact local authorities for assistance.

Pre-action ADR

3.38 Housing pre-action processes encourage parties to engage in ADR before
initiating a claim. However, there are various factors which prevent parties doing
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so in a meaningful way. For example, claimants for possession claims are not

199 CPR rule 73.2 – 73.10(C). Courts are required to consider all circumstances of the case when making
a charging order, including evidence before it as to the personal circumstances of the debtor, Charging
Orders Act 1979 s1(5). Case law holds that this includes consideration of “hardship to the wife and
children if a charging order is made”, Kremen v Agrest [2013] EWCA Civ 41 (Moore-Bick LJ).

200 Court Form N379 requires the creditor to include details of anyone else with an interest in the property,
such as co-owners, tenants and anyone else with right of occupation.

201 The 2015 Civil Court User Survey included questioning around action conducted before a claim. 40%
of participants said they had not considered mediation prior to the claim and only 28% of respondents
indicated that they took up mediation before starting a claim, Ministry of Justice, ‘Civil Court User
Survey’, Findings from a postal survey of individual claimants and profiling of business claimants’,
(MOJ Analytical Series, 2015) Table 6.2 available at https://assets.publishing.service.gov.uk/governme
nt/uploads/system/uploads/attachment_data/file/472483/civil-court-user-survey.pdf
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