Service of Forfeiture Proceedings

Article

06 August, 2013

In the recent case of Grimason v Cates, the High Court decided that a judge had been right in accepting that forfeiture proceedings had been validly served at the tenant's last known address.

Background

The tenant was granted a lease of a flat in 2006, but failed to pay the ground rent and service charges. In 2011, the landlord issued forfeiture proceedings in a county court. The tenant did not turn up to the hearing and the court made both a forfeiture order and a possession order and the landlord took possession in September 2011. The tenant then issued proceedings in July 2012 claiming that the forfeiture order had been obtained wrongfully because the landlord had failed to serve notice of the hearing. The judge dismissed the tenant's application and struck out the claim.

The tenant appealed against the decisions not to set aside a possession order made in favour of the landlord and to strike out her claim that the landlord had wrongfully obtained a possession order. The tenant argued that the issue of service of proceedings should have been dealt with at trial and her application to set aside the order had wrongly been dismissed as she had not attended trial.

Key Points of High Court Decision

  • The tenant failed to provide any evidence to support her claim that the issue of service at a last known residence was one for trial and could not be dealt with as a summary judgment.
  • On considering an application to set aside a possession order, the judge had to determine whether the tenant had a good case to show that the flat was not her usual or last known residence. This could only be determined by considering all the evidence. The court decided that in this case the judge had been able to reach a conclusion on the evidence because there had been little to challenge the landlord's claim.
  • The question of whether a person's use of a property amounted to their residence was a question of fact and degree. The critical test was the tenant's pattern of life, following the case of Varsani v Relfo Ltd.
  • There were no grounds for concluding that the judge's conclusions had been unreasonable and not supported by evidence. Therefore, there had been valid service of the application for forfeiture and the application for possession order.
  • A court asked to set aside a possession order should generally apply the requirements of Civil Procedure Rule 39.3(5).

Overview

This case highlights the importance of evidence when relying on a tenant's last known residence for serving notice of forfeiture proceedings. The lack of evidence in this case to support the tenant's claim that the flat was not her usual place of residence was crucial in this case.

The court drew attention to the case of Varsani v Relfo Ltd and the fact that the critical test was the tenant's pattern of life. Therefore, in cases where there is doubt over a tenant's usual place of residence it is necessary to set out the tenant's pattern of life and assess how often they are at the property and the length of time they stay at the property.

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