Can my tenants defend if they did not attend the eviction hearing?

Q

As a landlord, I attended a county court possession claim hearing today, raised on mandatory ground 8 of a section 8 notice, whereby the tenant hasn't paid any rent since March, ie, is 4 months in arrears.

I received an Notice of Acting from a solicitor firm 8 days before the hearing informing me that the tenant is planning to launch a counterclaim of disrepair at the property. A defence has not been formally submitted and will be at the same time as the counterclaim.

At the hearing, only the defendant's solicitor was present. The defendant arrived 45 minutes late after the hearing had finished.

The judge ruled that despite the rent arrears that the defendant's counterclaim needed to be qualified and has instructed a single joint expert carry out a survey at the property.

The provisional date of the final hearing is 9th November, by which time the rent arrears may have increased to 8 months.

The question I have, albeit I wasn't legally supported at the hearing as I didn't expect this counterclaim and I didn't have sufficient notice to organise a legal representative, would the fact that the defendant didn't attend the court hearing in person, albeit her legal representative did, give me an opportunity to appeal the decision and force the possession order on the grounds of mandatory ground 8?

I did not think of this at the time but it has occured to me afterwards.

Does the defendant have to attend the court hearing in person or can it be left to her being representated by her solicitor?

I would appreciate if you were able to advise me on my next steps and whether I should seek legal representation going forward. The rental property is in Birmingham. Mr Baller from Birmingham



A

My advice would be to get the repair work done as quickly as possible and try to resolve this case with the defendant, for example by offering compensation (to be offset against the rent arrears), so these proceedings can be cancelled. It you allow them to continue it could prove expensive and very long winded and you could end up seriously out of pocket- despite the fact that your tenant owes so much rent.
Far better (assuming the fixed term has ended or is likely to end in the not to distant future) would be to withdraw the possession element of this claim and serve a section 21 notice with a view to issuing proceedings under the accelerated procedure as soon as your notice ends.
It will be a much easier way to recover possession, and if the tenant knows that you are going to get possession anyway under section 21 it will make pursuing a claim for disrepair less relevant. Although they will still have a potential claim for compensation (unless, as I suggest, you are able to reach agreement with them).
To answer you actual question, the fact that the tenant did not attend the hearing does not mean they are not able to defend - they were represented by solicitors which is enough.
However my advice to landlords is to avoid defended claims like the plague, as they can become very long winded and time consuming - far better end a defended claim and use section 21.
This is all explained in my do it yourself eviction kit, available to +Plus members of Landlord Law. 5 August 2012

 

 

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