How to guard against rising defended eviction cases

By Alex Giblett, Legal Assistant, Woodstock Legal Services

Unfortunately, there are still significant delays to recover possession through the courts in England and Wales due to previous court closures and new regulations introduced because of Covid-19 pandemic. Consequently, it is not surprising that these delays have caused stress among landlords eager to recover possession of their property.  

Woodstock Legal Services are dealing with an increasing number of defended cases, usually on the basis of alleged disrepair on the property or tenants arguing they have not received certain key documents.

A defence filed by the tenant claiming not to have received a key document, such as the energy performance certificate (EPC) can cause additional stress and financial hardship for landlords and further delays to recover a possession order. This is especially true if a hearing is to be scheduled for a future date to determine the tenant’s defence and landlord’s possession claim. It is up to the landlord to convince the Judge that this document was sent and received by the tenant. If the Judge cannot be persuaded, then the notice can be deemed invalid, and the full claim struck out. A landlord would then need to re-serve documents, re-issue a further notice and then a new set of court proceedings once that notice expires.

Unfortunately, if the landlord does not have any evidence of serving the EPC or other key paperwork, it will be the landlord’s word against the tenant’s.

Top tips to protect landlords from defended cases

How can you protect your landlords as much as possible to avoid receiving a defence for non-service of EPC or other key documents?

• In the covering letter to the tenant enclosing the paperwork, list each key document served on the tenant.
• Using a pre-tenancy platform will typically provide and/or prompt you to send all the key documents required, eliminating the risk of document being missed. It may also provide you with an online audit trail to record the date and time each document was sent and received.
• If sending key documents by post, use recorded delivery and keep a record of proof of postage.
• If sending key documents by email, make sure the tenancy agreement permits service by email and keep a record of the email.  Judges are not very fond of email and have requested evidence of read receipts before.
• If personally delivering key documents by hand, ask the tenant to sign and date the covering letter enclosing and listing the documents served.
• Seek professional advice on how and what documents must be served on the tenant to serve a valid notice.