Date: 23 October 2006

DEVELOPMENTS IN PROPERTY LITIGATION

Litigation in the field of property is just as prone to change as other fields of litigation, it seems.  There are a couple of recent developments which are worth noting and which will affect many in this area of work.

The latest amendments to the Civil Procedure Rules – incredibly, these are the 42nd update of the rules – came into force on 2nd October 2006.  The changes included the introduction of a pre-action protocol for possession cases based on arrears of rent.

The protocol applies directly only to social landlords, such as local authorities, registered social landlords, and housing action trusts.  The provisions do not apply to long lease forfeiture cases, and they only apply when rent arrears forms the only basis for seeking possession.

The protocol, which like all protocols gives guidance on good practice and the best procedures to follow, requires the landlord to make contact with the tenant, explore problems, try to agree a suitable arrangement, and generally keep the tenant informed.  Steps must be taken to ensure the tenant can understand what is happening.  The landlord must consider whether ADR might be more effective than litigation.

Is this of relevance only to social landlords?  Directly, yes: however courts might consider that portions of the pre-action protocol ought to apply in other cases, as examples of good practice.  This is clearly a matter where one should at least consider whether parts of the protocol ought to be imported into other sorts of work.

Commercial property does not yet have its own court-sanctioned protocol but there is now a protocol for terminal dilapidations cases.  This has been promulgated by the Property Litigation Association, in conjunction with the RICS.  The protocol gives guidance on the format and timing of the landlord’s schedule of breaches and its endorsement by a surveyor.  Guidance is given as to the timing and format of the tenant’s response and the procedure then to follow.

While at present this protocol has no official standing, I understand that the Department for Constitutional Affairs is in discussion with the Property Litigation Association and that approval has already been given in principle for the introduction of this protocol on a more formal, statutory, basis.  Watch this space!

Richard Davis