A landlord brings a possession claim that the tenant considers is likely to succeed but the tenant will not agree to leave. To a landlord who has already waited months that looks like pure obstruction but the reality is that the tenant is following correct advice.
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.
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
In these cases, a settlement in which the tenant agrees to give up possession is usually off the table and there is little point in trying to achieve that outcome at mediation.
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 local authority. A landlord can agree to co-operate with the tenant’s approach to the local authority to secure alternative accommodation, which may give the tenant something of value.
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 mediate
Pressing a tenant to agree to a possession order at mediation is unlikely to secure that outcome. However, an agreement as to any arrears and a realistic timetable for possession so as to proceed on the basis of an undefended hearing will usually deliver a better, more certain result.
In my experience, when the landlord understands that the tenant is not being difficult, this paves the way to an agreement as to those issues that the tenant is capable of agreeing.
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.