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.