The work of housing management professionals often goes beyond the normal business hours. Sometimes the risk to life or property is perceived as so great that immediate action must be taken, but how can you resolve an urgent matter when your local court shuts at 4pm? For these emergency situations the court service is available year-round and at all hours, although the making of an application isn’t always straightforward or its outcome certain. Read more below for an example of how to make a successful out of hours application.

The tenant refuses to leave their home despite an imminent risk of collapse

Our client owns a small block of flats, which is occupied by two general needs tenants and which recently suffered significant damage as a result of a car colliding with it. One of the tenants immediately accepted a decant to emergency accommodation in the locality but the other refused to move, despite being given the keys to a decant property next door, and made various vague threats to harm any contractor who attended at the property as well as to take their own life. A structural engineer’s report made clear to our client that the damage was so great that the building was at risk of imminent uncontrolled collapse; a risk that was heightened by the fact that the tenant who was refusing to leave had a large quantity of personal belongings that, if moved in a random fashion, could increase the chance of collapse.

Our client rightly brought the matter to the attention of various agencies including the local authority, whose environmental health team then served an Emergency Prohibition Order under the Housing Act 2004 which prevented the use of the property with immediate effect.

Despite this, the tenant in the property was still refusing to voluntarily leave. At this point it was a Friday afternoon but in light of the engineer’s report our client was concerned about the property collapsing over the course of the weekend, causing a danger to the health and safety of not just the tenant but the emergency services and the wider public as well.

This risk was assessed as so great that our client took the view that an emergency application should be made to the court for a without notice injunction to exclude the tenant from the property and prohibit their return until the necessary works of repair had been completed. The view was taken that a power of arrest should also be sought, both to protect our client’s contractors and to set clear boundaries for the tenant.

How we helped our client by making an out of hours application

As the local court would be shut by the time that the papers were finalised, and the matter could not wait until Monday, we recommended to our client making an out of hours application to the High Court.

After calling the Royal Courts of Justice, we were contacted by the clerk to the out of hours Judge to discuss the case and explain why it was urgent. We were asked to email the clerk the papers and an out of hours application form, which was triaged by the Judge who then called counsel to hear submissions.

The Judge granted the injunction and power of arrest at 11.50pm that Friday and provided a signed Order for service on the tenant, which was duly served by our process server with police assistance on Saturday. The tenant was removed from the property and assisted in moving into the temporary decant accommodation next door.

The case itself was then remitted by the High Court to the local County Court, where the papers were sent for issue on Monday morning. A return hearing was set in the usual way, which took place at the end of that week, and the interim injunction granted by the High Court Judge was made final and extended to cover the duration of the proposed works. An application by the tenant within the proceedings for access to the property was resisted and dismissed.

This was a successful result for our client. The injunction was obtained rapidly and was a practical solution to a very real problem that, if ignored, would have placed our client in breach of the Emergency Prohibition Order and could have ended in tragedy.

Capsticks’ view

An exclusion order is a draconian remedy in circumstances where the property is the defendant’s home, and a without notice application is a departure from the rule of natural justice that a party should be informed of the allegations against it and be given an opportunity to answer those allegations. The fact that the application needed to be made out of hours before a High Court Judge added a veneer of complexity to an already unusual and difficult case where the prospects of success were unknown.

Interestingly, although the tenant had made vague threats to harm our client’s contractors as well as to take their own life which allowed the injunction application to be made, the High Court Judge was particularly swayed by the service of the Emergency Prohibition Order by the local authority and the fact that the tenant remaining in the property would be a breach of that order.

Whilst we suspect that the Judge would have granted the injunction absent service of the Emergency Prohibition Order, the key takeaway from this is that close working with other agencies certainly facilitated our client’s application and strengthened its evidence in support.

What you need to consider in similar cases

Out of hours applications are not limited to the injunctions that you hear about in the news; for example, when a celebrity needs an injunction to prevent the publication of a damaging story in an early edition newspaper. The same process can also be used for housing management cases. 

Although an application for an exclusion order is a remedy of last resort, and that doing so without notice offends the principles of natural justice, this case is a useful reminder of two things:

• emergency applications in housing management matters can be made around the clock should circumstances dictate
• close working with partner agencies such as the local authority can significantly improve the chances of success before the court.

How Capsticks can help

Our specialist housing team is working to ensure that we are right beside our clients every step of the way. Our experts are on hand to advise on all aspects of housing management, including complex court injunctions, safety issues and taking emergency actions. Our values reflect your priorities – we care about what we do and aim to make a positive difference in people’s lives.

If you have any queries around what's discussed in this article, and the impact on your organisation, please speak to Steven Wood to find out more about how Capsticks can help.