A landlord brings a possession claim. Everyone in the room, including the tenant, knows the property will have to be given up sooner or later. Yet the tenant will not agree to leave — not on any date, not on any terms. To a landlord who has already waited months and watched the arrears climb, that looks like pure obstruction.
It rarely is. In most cases the tenant is following advice, and the advice is sound.
Why the tenant cannot simply agree to go
Where a tenant will need the local housing authority to rehouse them, the way they leave matters enormously.
Under Part 7 of the Housing Act 1996, a housing authority owes the main housing duty only to an applicant who is homeless, eligible, in priority need and not homeless intentionally. Section 191 provides that a person becomes homeless intentionally if they deliberately do, or fail to do, something in consequence of which they cease to occupy accommodation which was available to them and which it would have been reasonable for them to continue to occupy.
A tenant who agrees to give up possession has, on the face of it, done something deliberate. If the authority concludes that it would have been reasonable for the tenant to stay — and, in the absence of a court order requiring them to leave, it may well conclude exactly that — the tenant can be found intentionally homeless. The consequence is severe. Instead of the main housing duty, the authority owes only a limited duty to provide advice, assistance and temporary accommodation for a reasonable period.
For a tenant with children, that is the difference between being rehoused and not being rehoused. It is why housing advisers routinely tell tenants in this position not to leave until a court has ordered them to.
The position is not quite as rigid as it is sometimes presented. The Homelessness Code of Guidance discourages authorities from insisting in every case that a tenant remain until bailiffs attend. And the courts have taken a more forgiving view of causation than they once did: in Haile v Waltham Forest LBC [2015] UKSC 34 the Supreme Court held that where an applicant would have become homeless anyway by the date of the authority’s decision, an earlier deliberate act may not be the operative cause of the homelessness.
But those are arguments, not guarantees. Practice varies between authorities, and a tenant who guesses wrong may be left with nowhere to live. Faced with that risk, most will not gamble — and no responsible adviser would tell them to.
The landlord’s position is not unreasonable either
None of this makes the landlord the villain. Arrears may be accruing with no realistic prospect of recovery. The property cannot be re-let. There may be a mortgage to service. The landlord’s own costs are mounting, and the one thing they most need — a date — is the one thing the tenant will not give.
But the two positions are less irreconcilable than they appear, because they are about different things. The landlord wants possession and money. The tenant is not, in truth, resisting possession. The tenant is resisting agreeing to it.
That distinction is the key to the whole mediation.
What mediation cannot deliver
It is worth being blunt about this. In these cases, a settlement in which the tenant agrees to give up possession is usually off the table, and a mediator who spends the day trying to extract that concession will waste it.
Nor is a consent order for possession a straightforward way round the problem. It needs careful thought and proper advice: the court will still need to be satisfied that the grounds are made out, and an order the tenant has actively consented to may attract more scrutiny from a housing authority than one made after an undefended hearing. This is not an area for improvisation on the day.
What mediation can still achieve
A great deal, as it turns out — because possession is only one of the issues in dispute.
The money. Rent arrears, dilapidations, the deposit, and any disrepair counterclaim are frequently the larger financial dispute, and none of them depends on how possession is resolved. They can be compromised in full at mediation.
Whether a money judgment is entered at all. A county court judgment can make it very difficult for a tenant to rent privately for six years. For a landlord facing arrears that are, realistically, irrecoverable, agreeing not to pursue a judgment may cost little. For the tenant it can be worth a great deal. That asymmetry makes it one of the most productive trades available in the room.
The timetable. The landlord may agree not to apply for a warrant before a given date, or to give advance notice before doing so. That does not require the tenant to agree to leave, but it gives the tenant and the authority something to plan around, and it substantially reduces the risk of a crisis eviction.
Cooperation with the homelessness application. A landlord who agrees to provide the tenancy agreement, the notice and a short written confirmation of the position, promptly and without argument, gives the tenant something of real value at almost no cost.
Whether the claim is defended. A tenant who cannot agree to leave may nonetheless agree not to run a defence, or to narrow the issues considerably. That can turn a contested hearing into a short undefended one — which is a substantial saving of time and costs for the landlord.
Conduct in the meantime. Access for viewings and repairs, how communication is handled, and what happens to the property before it is given up.
How the settlement is structured
The usual approach is to carve possession out. Everything else is settled by agreement, and possession is left to the court to determine on an undefended basis. The terms can be recorded in an order which makes clear what is agreed and what is not, with the confidential financial terms scheduled to a Tomlin order if the parties prefer.
The drafting matters here more than usual, and both sides should take advice on it — particularly on anything that might be characterised later as the tenant agreeing to give up possession.
Why a landlord should want to mediate anyway
Because forcing the issue does not actually work. Pressing a tenant to surrender may achieve nothing except an intentional homelessness finding, a request for review, and a tenant who remains in occupation for longer than if the claim had simply proceeded. A realistic timetable, a settled position on the money, and an undefended hearing will usually deliver possession sooner than a fight about whether the tenant should have agreed to leave.
In my experience, the moment that changes the temperature in these mediations is when the landlord understands that the tenant is not being difficult — they are being careful, and for a reason that would apply to anyone in their position.
When mediation is still not the answer
If the tenant has a genuine defence that needs to be decided, if there is a point of law that requires determination, or if there is urgency arising from antisocial behaviour or risk to others, the court is the right forum and mediation should not be used to delay matters.
But where the dispute is really about money, timing and dignity — which is most of the time — the fact that the tenant cannot agree to leave is not a reason to avoid mediation. It is simply a constraint to design the settlement around.
If you have a possession dispute with this difficulty in it and want to discuss whether mediation would help, I am happy to talk it through.