Regular readers may remember that back in November I wrote about a case (Nicholas v Secretary of State for Defence) where the Sheriffs used the wrong procedures when evicting tenants who had failed to move out after a possession order has been made.
A recent post on the Nearly Legal blog makes it clear that actually this is quite a widespread practice. Which is worrying.
Why it’s happening
The problem is that in many courts – due to funding cuts and shortages of staff – there are major delays in getting bailiff appointments. As it is illegal for landlords to physically evict tenants themselves (even after a possession order is made) this is a big problem for them.
If a tenant is not paying rent, a landlord may already be many thousands of pounds out of pocket due to the time it takes (up to six months or more) to get a possession order. Not surprisingly, the landlords are then outraged to discover that they then have to wait a further two to three months (with no rent being received) before they can get their property back.
Naturally they will turn to the Sheriffs with relief if they say they can get an earlier appointment. They will not know – how could they? – that the procedure being used is incorrect.
The wrong procedure
Normally when an order for possession is made, it is made in the County Court. The Sheriff’s however, are High Court enforcement officers (HCEO’s). For them to be able to act, the case needs to be transferred to the High Court for enforcement.
This is not a problem for CCJs (so long as they are over £600) as the procedure is straightforward. However, it is not so easy to transfer a possession claim to the High Court for enforcement. This needs:
- leave from the County Court and also
- the permission of the High Court, plus
- written notice needs to be given to the tenant.
This all takes time, even if the Court agree to the transfer (which often, they don’t)..
However you don’t need this permission if the enforcement is against trespassers. Possession claims against trespassers use a different procedure. So what people have been doing, is using the form for trespassers in circumstances where the eviction is against tenants.
Which is wrong.
Why its bad news for landlords
You may say “what’s the problem?” The landlord has a possession order anway, what does it matter if a few wrong forms have been used?”
The problem is that as an illegal procedure was used to gain possession, the tenant has a claim against the landlord:
- He can, even after he has been evicted, apply to the court to be reinstated
- Even if this is not possible (because a new tenant has moved in) he will be entitled to claim compensation
- It could also be contempt of court
So far as any financial award made, the landlord will almost certainly be able to claim this back off the Sheriff’s. Sheriffs will be liable to them for this and should carry insurance for claims.
However, this won’t help you if the court orders you to let the tenant back in again. Plus no landlord wants to be put in a position where they’re faced with a claim by the tenant – even if you are able to pass the loss on to the sheriff’s, its all hassle which you don’t want.
Good news for Local Authorities
The other thing to consider is why the tenants did not move out in the first place.
Usually, this will have been because they were told by the Local Authority Homelessness Office to stay put until they were able to find the tenants somewhere to live. Which often (due to the shortage of accommodation available) they are unable to do until their hand is forced by the bailiffs /sheriff’s eviction.
Now they have been made aware of the problem; many Local Authorities are going to be telling tenants that they won’t be re-housing them as the tenants can challenge the eviction – if it is using this illegal procedure. This will both put off the evil day when they have to re-house the tenant and put the tenant in funds so they will need less support.
The real problem
The real problem however, is that the process of moving a possession to the High Court for enforcement is so complex. Why is this? Why is it necessary for the hapless landlord to have to get leave from both the County Court AND the High Court? Why is it so easy to transfer up CCJs but so difficult to transfer up possession orders?
One ‘conspiracy’ answer is that Government doesn’t want landlords to use the quicker sheriff procedure because it is better for them (and for Local Authorities) if the landlord continues to house the tenant free of charge as long as possible.
It would be perfectly possible to provide for a straightforward ‘transfer up’ procedure (like that for CCJ’s) and this could easily provide for the Sheriffs to give, say, a minimum of 1 weeks notice to tenants before the appointment date.
It could even be an income generating opportunity for the Courts, as landlords losing over £1,000 pm would be quite happy to pay a hefty court fee if it cuts the delay by a couple of months.
What should landlords do?
Landlords should beware the siren call of HCEOs offering to recover their property within a couple of days, particularly if they promise 24 hours.
It is impossible at the moment for this to be done legally. So landlords who do this could be faced with tenant claims for restitution, compensation and of course, costs.
What should landlords do? Suggestions include setting up a petition and getting all landlords to sign it, contacting your MP, and agitating for landlords associations to do something about it.
Another answer is to take more care in the choice of tenants so evictions are not necessary. If you can.
NB Local Authority Officers wanting a bit of training on preventing homelessness, could do a lot worse than check out Ben’s training >> here.
This news is indeed spreading throughout homelessness land Tessa. For a couple of years now homelessness units in some areas have been seeing more and more of these High Court evictions which take everyone by surprise in their speed and the chaos it causes a homelessness unit having to suddenly find temporary accommodation for a family with little to no warning.
The frontline of all homelessness serevices these days is ‘Homelessness prevention officers’ sometimes labelled ‘Housing Options’. One of their chief roles is to asses whether or not possession proceedings are valid and to let the case workers know when a person is likely to be turfed out. So news that High Court proceedings are likely to be defective is being picked up all over according to my many and numerous contacts in the trade.
Even if the locks have already been changed the tenant can, with the homelessness unit’s help, apply back to court to get the warrant set aside and the tenant re-instated, referring on to solicitors for a damages claim for abuse of process. Tenant sues landlord, landlord sues enforcement company who they paid.
A very messy situation
I was told on the Nearly Legal blog that the HCEO procedure was created for ‘urgent’ evictions which goes to show that the CC procedure is relatively slow by design. Considering the hoops to go through to use the HCEO route, it also seems obvious that it is discouraged.
This is no conspiracy.
Why should occupiers receive further notice that CC bailiffs or HCEOs will be carrying out the eviction? They were already given notice, then a court order was issued given them a deadline to vacate the property.
In my opinion, the whole system should be simplified and streamlined (there should be no need to ‘transfer up’ anything) to guarantee eviction within 7 days after the court order’s deadline without further notice to occupiers on simple and single application to the County Court.
I have seen documentation that it is incumbent on the local authority (certainly my own -North East Lincolnshire), to consider a tenant homeless, for the purposes of re-housing them, ‘…from the point the tenancy becomes unsustainable.’
Technically this should be once a tenant can’t afford the rent/falls into unrecoverable arrears and/or the eviction process has begun. Obviously they’re going to resistant to this but us landlords did not write the rules. Needless to say they ignore the direction and at the moment with Clause 24 we have bigger fish to fry, but they still tell tenants to stay put until the Bailiffs/Sheriffs arrive.
Luke don’t confuse treating a tenant as homeless with the duty to provide accommodation. A person is homeless if they are threatened with homelessness within the next 28 days but this doesn’t mean that the local authority has to provide accommodation at that stage, merely open a homelessness application and begin investigations.
In addition to the threatened 28 days category is Section 175 c of the Housing Act 1996 which defines a person not homeless, where a person “ occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession.” and a person has a lawful right to remain until the warrant is executed.
Many landlords point to paragraph 8.32 of the homelessness code of guidance which states it should be unreasonable to expect an applicant to remain beyond the date of the section 21 but this is only guidance, not law.
The vast majority of possession proceedings are done under s21 and the amount of people approaching a homelessness unit each day for assistance in areas of high demand providing temporary accommodation on expiry of a s21 is utterly impossible as we are literally talking several hundred cases each month per authority.
The law states it is unlawful to keep a family in B&B for longer than 6 weeks so where to go for other temporary accommodation? The private rented sector, but market rents and benefit caps in areas of high demand don’t match up and PRS landlords have a ready supply prospective tenants not being ushered through the homelessness system.
So out of area then where rents are more affordable? No because councils get taken to judicial review
For these reasons homelessness prevention teams are paying close attention to this high court malarkey
Guidance that’s clearly ignored in practically every case. I would expect that this should be adhered to in a good number of cases and not dismissed merely as ‘guidance’ (therefore we can forget it).
Do you not think that resources would be better directed towards tenant education -DON’T fall into arrears (particularly if your rent is paid by the local authority), DON’T cause problems with the house/neighbours, DON’T breach the tenancy agreement etc. That would likely result in less evictions, thus less homelessness.
To be frank, I and I imagine many other landlords, do not care about the state of homelessness prevention departments. If you need more money/resources, then that’s an argument between you and the Government. Clinging on to, “It’s only guidance.” will only shift the problem temporarily and it will store up for you again later on down the line. There is only one way to solve this and that’s to start tackling the problem of tenants education.
If any tenants reading this want educating, there is my free 12 part e course here http://www.tenant-law.co.uk/
However most decent tenants will behave decently as a matter of course. So landlords need to take more care about checking their tenants before they let them in.
This does not always work but when I did eviction work it was not uncommon to learn that the tenants had been allowed in without proper checking.
I do check tenants and personally have few problems, even when I do, the homeowner guarantor foots the bill in 99% of cases, but I rent in a very deprived area of the country and many tenants would not pass full and proper credit/tenant referencing.
It’s not for the PRS to figure out this problem. As I’ve already said, the issue of tenants causing a nuisance (in whatever capacity) won’t be solved by passing the buck -this needs a head-on approach against the tenants themselves, otherwise you’re storing up future troubles.
“a homelessness unit having to suddenly find temporary accommodation for a family with little to no warning.”
Come off it Ben, they have had months of warning. From the tenant receiving the initial proper s21 notice to obtaining a possession order.
I’ll save my sympathies for the millions of ‘NO DSS’ tenants paying the true price of this short sightedness.
@HB Welcome Perhaps you can explain how they are supposed to rehouse them when there is no accomodation to put them in?
Tessa, it’s not for HB, nor any other landlord to figure the answer to that out. Trying to make homelessness the problem of the current landlord for as long as possible is no solution, just a plaster…and a temporary one at that.
Perhaps instead of being so harsh with landlords, we should provide a bit of ‘tough-love’ to tenants -“Mess around and fall into arrears and get evicted, then you’re out on the streets and don’t turn to the LA. It’s your own fault!”
It is part of a wider problem regarding housing generally. I think many people are unhappy about the way this government is dealing with it.
However expecting Councils to rehouse people when there ain’t no place to put them is not reasonable. Naturally the hard pressed Council officers are going to put off rehousing tenants as long as they can. What else can they do?
Stand up and tell central Government that the system is crumbling…?
Stop trying to work under impossible conditions just to ‘please the master’.
These are ordinary Council employees we are talking about here, just trying to do a job so they can put food on the table. They are not personally responsible for the situation any more than landlords are.
Why should they risk their job security and being thought of as a ‘troublemaker’?
And expecting the PRS landlords to take up some of the slack and accept losses IS reasonable?
“Perhaps you can explain how they are supposed to rehouse them when there is no accomodation to put them in?”
Closing the stable after the horse has bolted.
The PRS was the obvious place but, in a large part due to this stupid practice, average landlords will no longer take on ‘DSS’. Whole swathes of accommodation taken away from perfectly decent tenants.
The only landlords taking them on are mugs, criminals or the highly specialised. Have a shufti at rental ads in your local area willing to take on housing benefit tenants.
“I think many people are unhappy about the way this government is dealing with it.”
And the last Liberal/Conservative government, and the Labour government before that. Whilst a valid point, it is an easy cop out.
A large part of the blame lies squarely at ‘hard pressed Council officers’ taking the easy, short term solution and creating ten times the work further down the line.
Well, it seems that the conspiracy theories do hold quite a bit of truth…
Indeed!
I have some sympathies with landlords who can’t quickly evict persistent non-paying tenants and/or tenants who are trashing the place (I never dreamt of being either) but that distinction between willfully bad tenants – and those who have fallen onto hard times (and just lost their job for example) is a very important one of course. You cannot make it too easy to evict tenants – that nuance is about empathy as much as it is about the tenant’s legal right, or not, to occupy.
You have to pay the mortgage, I know. And many landlords are not in ‘the business’ of empathy, I know that too, believe me. But if you thought that being a landlord was easy-money then you’re mistaken. Certainly not when you’re ‘up against’ a tenant that knows their rights, anyway. That tenant is usually me…
And all the while that ‘no fault’ evictions persist then landlords still hold the trump card. So it’s funny to hear you talk, Luke, of educating tenants – when one imagines that the very reason so many tenants get evicted is thanks to S.21. I paid my rent on time every month – but that didn’t stop my landlords doing as they please when it’s just “time for you to go now”.
Who cd blame a tenant for ‘playing this game’ aswell? And I include the decent honourable tenants in that. Let that notice to quite expire… see it to court, if you have a spare £280? (possibly a drop in the proverbial ocean compared to your extortionate rent!) If it buys you more time… maybe it’s worth it.
Cos this really is a game, as far as I’m concerned. I played it myself. It bought me 4 more months in my home and that was everything I needed. (Tho, it must be said, that I paid a lot less to do this in Scotland).
Landlords will complain about the high cost of evicting tenants – but plenty of tenants wd just be expected to reimburse the landlord’s legal costs and fund their own eviction anyway.
Maybe that same tenant is inclined to forego some of the last month’s rent, in lieu of these legal costs…
And who cd blame them? Why should tenants fund my own eviction?! Really, why?.
These are our homes. And moving ‘every 5 minutes’ is the most draining, stressful and upsetting thing you can do. No fault evictions should be abolished. That’s it. ScotGov has certainly realised as much. (but God forbid we get carried away – things cd still get messy https://www.linkedin.com/pulse/zero-hour-contract-your-home-mike-dailly)
But it all rather reinforces the point that renting out your property (or your spare hovel) is no easy ride – and I might suggest that if you can’t stand the heat, then you just get out of the kitchen. Homelessness teams have little choice but to take things to the wire. And like it or not, that is your problem. While no fault evictions persist, I have no sympathy for you.
If i every get a reference from a past landlord for a tenant saying they “played the game” and forced the landlord to use to court process to enforce a S21 notice, they would not be allowed to become one of my tenants.
And that’s the other trump card that landlords hold, of course. You get to label that tenant a troublemaker just for exercising their legal rights and daring to challenge you. You feel justified in that I’m sure – cos “this is my property”. And, on you go, continuing to miss the point. That your needs do not trump the tenants just because you own the joint. And that housing law does not always mean getting your property back with a quick finger-snap. My landlord couldn’t seem to get her head round that one, poor thing .
For many people 2 months is simply not enough time to uproot your life and move on – for all the obvious reasons like children, schools, jobs or health etc… But landlords will do whatever it takes to stop tenants getting ‘the upper hand’. Suffice to say that I didn’t ask my landlord for a reference. I just moved in with friends. But if every tenant starting ‘taking the power back’ and seeing it to court – well that would be interesting.
I might add that not having you as my landlord wd not lose me any sleep Ian.
Hopefully your last landlord is a member of http://www.landlordreferencing.co.uk/ even if they are not, any sensible landlord will expect a reference from EVERY address someone has lived at over the last few years.
RR,
Can’t understand why you keep getting so many rogue landlords.
If using an S.21 makes you a rogue landlord, sure.
It is yet another reason not to rent to anyone that does not pass the checks to get RGI (Rent Guarantee Insurance) – is it the aims of the court system (and housing officers) to make it impossible for anyone without a very good job to find a landlord that will rent to them…….
Today I was talking to the owner of the garage I use, he has a flat above the garage and is thinking of leaving it empty, as the last tenant did not pay the rent, but got rewarded with a council house and he has no way to recover the lost money. The location of the flat (above garage) makes it hard to find tenants that will qualify for RGI.
There are a number of points here:
– should possession orders be enforced quicker?
– should it be easier/more difficult to get possession orders in the first place?
– how do we deal with the housing crisis?
These are all very difficult to answer. However everybody seems to agree that falsely applying to enforce an order against “tresspassers” is the wrong answer. There are useful articles about this on Nearly Legal and on my Coventry View blog here http://wp.me/p1yFJl-hU
Thank you Coventry Man for bringing this thread back on message.
I have been unable to post further to day out of sheer astonishment at the views of landlords expressed that would Marie Antoinette look like a pragmatist.
Basically, whilst I can understand a landlord wanting a faster eviction against a tenant owing £5k rent arrears the high court option as highlighted here leaves the landlord open to a claim for damages, which is not good news for them.
That the posters here sidetracked the homelessness crisis into a conspiracy against landlords does not deserve comment….whoops I just did. But dont expect another one
No Ben, on the contrary, I found that deviation very enlightening and so welcoming.
RR thank you for posting, you make some good points, but let down by some of your other rhetoric.
I agree, I am also very concerned at No Fault evictions, and although essential may need to be harder to get, and accept it causes disruption.
But playing the system to extend the stay is so counterproductive. Carrots and donkeys, dogs chasing tails come to mind. The faster the canine chases the faster the tail moves away, s’funny. So the housing department will get far fewer private LLs willing to assist them. And hopefully the ‘system playing’ tenants will sooner or later be ‘referenced’ out of all acceptable accomodation – the sort any decent person would be willing to take.
If the housing department would pay the rent or money for occupation, mesne rent, or “pay off arrears equal to each months rent” whilst the tenant stays, gets employment sorted out, get his/her HB assessed so that the LL does not acrue FURTHER losses, surely this would take the heat out and in many cases resolve the situation?
Not doing so, or RRs and his mates will hopefully hasten a change in the law, before all private DSS tenancies are a thing of the past.
Hi Chris,
You don’t really clarify that “counterproductive” point very well. I see a dog chasing a tail, but not much else frankly.
I call it a game because it really feels like Chess sometimes. A series of considered smart moves, made from both sides; one side wins and the other side loses. S.21 makes sure that tenants have to move eventually, whether they like it or not… so the tenant can never really ‘win’ of course. As I’ve already said, despite all their protestations, landlords continue to hold the trump cards. (maybe Poker is the metaphor I should be running with.. )
Of course I see how my decisions can backfire. (I must not forget my place, I must not forget my place). But i just did what I needed to do…
I simply needed more time (for reasons that I’ll keep personal). I tried asking my landlord for 3 months notice instead of 2, when I got that notice to quit. But “It can’t be done” she said, bluntly. There was no discussion. She wasn’t interested. She stood her ground. And then I stood mine.
You go on to imply that any “decent” tenant wd never do such a thing, which is funny. Comments like that (and other suggestions here that we tenants just bring this on ourselves) fall right into that victim blaming cliche that we’ve all come to expect from landlords. It’s so predictable, and far-off the point, that it becomes funny.
I established yesterday that it actually costs a tenant in Eng & Wales £406.75 (soon rising to £456.75) to see their S.21 to court. So (fear not) I don’t imagine many tenants there are going to follow my lead. Saying that, it only cost me £136 (to do this in Scotland).
[ The rates for standard tenant eviction claims amount to £69.50 to issue the claim and, generally, £57.25 when judgment is entered. In addition, the court’s issue fee of £280 (soon to be £350) and reasonable expenses should also be recoverable.]
To clarify, I think your actions are reprehensible, but I would rather be enlightened of why it is being done. Most but not all, tenants think that renting is right for them. I had tried hard to assist. I am just starting evictions I have two to deliver later today. I would prefer neither to go ahead. One lost his job after an accident then an illness. He has borrowed one of his sons from his ex-wife I presume to enhance his HB claim. But he in months in arrears, so will be logged on landlord referencing. If the housing office assist him him playing the system, he will have a CCJ, an eviction at earliest possible date and no more HB tenants will be accepted. Perhaps I will offer the flat furnished for emergency accomodation, providing they pay and provide a bond.
If the housing office assisted to ensure the debt never gets worse, I will delay indefinitely. That way all 3 parties stand to loose less as I see it. Is there a better course for me to follow? Anyone?
As Ben said at 10.21 yesterday, by them having s8 eviction notices for 15 days hence, the housing office should regard them as homeless, and if benefits are due, step in sooner rather than later, once started I will see it through and ensure I get only tenants that do qualify for RGI.
The broken policy of ineffective eviction when fully justified, has hardened my attitude, doubtless of many more, as this HCEO saga gets more widely known.
The problem is that unless the tenant has a good job or owns a nice car it is impossible for the landlord to get the £456.75 from the tenant, regardless of the judge ordering the tenant to pay it. Hence it is no longer worth the risk for most landlords to take any tenants on benefits
.
The “System” is making tenants on benefits “unhouseable” by private landlords, while at the same time removing other housing options.