Workshops are a good chance for me to speak to landlords and agents and find out what is going on in landlord land. At my recent workshop on Ending Tenancies, I learned about a new ploy being used by at least one landlord to get his tenants to move out.
It’s one I am afraid, that is wholly illegal.
The penal notice ploy
The landlord concerned (I never learned his name) apparently took the view that a tenant’s failure to move out by the date given in the possession order, is a criminal offence.
This justified him, he reasoned, to serve on his tenants a penal notice telling them that if they did not move out pronto, he would apply to Court to have them committed to prison.
Here is the wording of the notice he has apparently been serving on them.
Penal Notice
Date:
Name:
Address:The recipient of this notice is formally warned that an application is to be made in Norwich County Court for you to be COMMITTED TO PRISON under procedure rules 81.1 for our CONTEMPT OF COURT.
On under case number the Court made an order that you vacate the above address within 14 days.
This notice is for your committal to prison for your wilful refusal to obey the order of the court in that under CPR 81.4.(1)(a) you have failed to do that act in that you have remained in possession of those premises.
YOU SHOULD SEEK IMMEDIATE LEGAL ADVICE
[Service details]
What the court rules say
I think the nameless landlord was probably led astray by the wording of CPR81.4 which says:
(1) If a person –
(a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or
(b) disobeys a judgment or order not to do an act,
then, subject to the Debtors Acts 18692 and 18783 and to the provisions of these Rules, the judgment or order may be enforced by an order for committal.
However note that the rule says ‘may’ be enforced. This is not the same at all as saying that this will (or should) actually happen. Whether it is enforced that way or not will depend on a Judge’s decision.
And it is unthinkable that ANY Judge would make such an order against someone who has failed to move out at the end of a 14 day possession order.
Here are two reasons:
- The tenant may have been told to stay put by the Local Authority and warned that if he did not do so he would lose his right to be re-housed, or
- He may have grounds to appeal the possession order
Neither of which justify putting the tenant in prison.
The use of a penal notice is a very serious remedy and is not likely to be used lightly by a Judge. For example, they are sometimes used to support orders made in family proceedings restraining violent partners from going anywhere near their former spouse.
Landlords are supposed to use bailiffs
The main reason though why no Judge would EVER agree to such a thing is that there is already a procedure laid down for landlords to follow if tenants fail to move out. This is that they should apply for a bailiffs appointment in the normal way. Or alternatively apply, via the proper procedure, for this to be done by a High Court Enforcement Officer.
No doubt the reason why this landlord was unwilling to do this, is because of the delay which occurs, particularly in busy courts, between making the application and getting the bailiffs appointment. Sometimes this can be two months or more.
However, unfortunately, this is the way things are at the moment. When you let your property to a tenant, you are thereby taking on the risk that this might happen. If you don’t like it – the answer is not to rent out property. Or take a lot more care who you rent to.
What getting a penal notice would actually entail
I would also point out to any landlords who are thinking of following this path, that to get a penal notice they would need to make an application to the court, presumably on form N244 and pay the court fee which I understand would be £255.
This application would be set down for hearing, probably (as the courts are very busy) some considerable time in the future. You would then need to attend court, to explain to the Judge why you are wasting his time with such an application.
If by any chance the Judge had a brainstorm and actually agreed to make the order, the tenant would not be committed to prison immediately. You would be given a notice to serve on him, and it would only be if he failed to comply with it that he would be committed.
So landlords are strongly advised to use the quicker and cheaper bailiffs procedure!
Advice to tenants
My informant told me that the ‘penalty notice’ ploy has proved extremely effective and that most tenants moved out pretty quickly after it had been given to them.
However, landlords should remember that under the Protection From Eviction Act it is a criminal offence for a landlord to do anything which causes a tenant to give up occupation of their property unless this is done through the courts in the proper way.
Which means that tenants may have a claim for compensation for unlawful eviction.
So if this has happened to you, you may want to think about this and maybe consult solicitors.
If such a notice is served on you and you have not moved out yet – I would suggest (subject to any other legal advice you may get) that you apply to Court for a stay of execution and take the notice that the landlord has served on you along to the hearing.
I suspect the Judge will have a few things to say about it. He may even consider the landlord to be in contempt of court himself.
And finally
This is the second illegal procedure which I know about which has been used to evict tenants from properties after a possession order has been made. The first being the incorrect procedure used by many High Court Sheriffs discussed here.
These were both wrong of course, but they came about due to a serious problem in the courts – the massive delays in obtaining bailiffs appointments. Delays which can cost landlords (whose tenants are usually not paying rent) many thousands of pounds.
It can take six months or more to obtain a possession order through the courts. Where tenants are not paying rent, it is unreasonable to expect landlords to wait a further two to three months (and suffer further losses) before getting their property back.
These illegal procedures are unacceptable but they occur because of a genuine grievance which landlords have. If it is not resolved (and in the current situation I don’t see much chance of this) then we can probably expect further landlord ploys to reduce the substantial financial losses that they suffer due to court delay.
What complete and utter nonsense – and illegal nonsense at that.
There is no judgement for the tenants to disobey, and there is no offence committed because the tenants are entitled to stay whether the LA or CAB has advised them to or not.
What it is is clearly harassment under the various Harassment Acts, so I suggest the tenants instead serve counter notice of their intention to litigate for what is a criminal offence, though they will not proceed on payment of a suitable amount for damages and the distress caused. I’d say x4 the deposit as in TDP sounds reasonable.
For fun they could also seek an injunction barring the landlord from contacting them. Then let’s see him evict them!!
If rent is involved it could also be a breach of Section 40 of the Administration of Justices act 1970, falsely representing that criminal proceedings are extant and causing alarm or distress.
I’ve done several of those as a TRO
A tenant who does not leave by the time fixed by a possession order does disobey a judgement. Therefore I am no convinced that a landlord sending such a notice (appropriately worded) does anything unlawful.
As I wrote before, the rule book on evictions should be re-written to give back centre stage to court orders. There should be reals consequences if ignoring them.
The current legal position regarding assured tenancies has lead to everyone blissfully ignore what courts of law order.
Romain do you propose then that mortgagors be subject to the same incarceration when they don’t move out following possession order? What about landlords who don’t give up keys when they get repossessed? Or is it only tenants who should jailed?
It is not a criminal offence to fail to comply with a court order in a civil claim. Otherwise, we are back in Dickensian times when debtors got slung into prison for failing to pay.
The real significance of the date for possession in a possession order is that the landlord cannot use any of the court enforcement procedures before that date has passed. Just that.
Unless leave of the court is granted to enforce early (and I did once manage to get leave in one of my cases where the landlord had a sale deadline).
Putting someone into jail is not something that can result from a civil judgment or order. UNLESS the Judge has specifically approved the use of a penal notice. If the person then fails to comply with the penal notice, then and only then, will they be put in prison. But this is very rare.
On a practical basis, the prisons are overfull as it is with real criminals. They cannot sustain an influx of tenants who fail to move out within 14 days! Another reason why no Judge would authorise such a thing in connection with a possession order.
If anyone is still muddled about the difference between the civil and criminal legal systems, I explain it here http://www.landlordlawblog.co.uk/2010/12/18/criminal-law-and-civil-law-explained-they-are-not-the-same/
Romain, an assured tenancy doesn’t come to an end until the execution of the order of possession, through getting a warrant of possession (or writ of possession), and the execution of that by the bailiffs (HCEOs). Until then, the tenant have all the rights and obligations of the tenancy. A court will not / cannot jail somebody for exercising their right of tenancy under law.
Let’s not mix and confuse several aspects here.
A possession order is a court judgement and it requires (not suggests) the tenant to vacate by a certain date.
I fully agree that courts will not jail tenants with disobeying even if landlords could make such an application, nor did I claim that they should.
I am obviously also fully aware that the tenancy does not end until the order is executed by bailiffs. That’s beside the point though it may be part of the problem as it gives the impression that all is fine.
Any law-abiding citizen should not think that disregarding a court order is fine. Hence why I suggested in my previous comment that there should be real consequences for ignoring a court order.
I think that is what the focus should be instead of always siding with tenants who are in the wrong by ignoring possession orders. It only undermines courts of law.
Now, reading CPR 81, a possession order may not usually be enforced through a committal application because possession orders do not usually contain a ‘penal notice’.
Perhaps landlords should request such notices to be included in possession orders. I’m not holding my breath that courts will usually grant the request.
But does that mean that a carefully drafted letter from a landlord stating that he will make an application under CPR81.4 is necessarily unlawful, though?
Romain my comment was not based on the legality of such a position, I know you arent arguing that but I am approaching this argument from an overview perspective.
You are referring to tenants in this but landlords and home owners are subject to exactly the same rules on possession orders, no variation whatsoever. You have sidestepped my question in a sense by referring to “Any law abiding citizen” but you then go on to talk about tenants again “Who are in the wrong by ignoring possession orders”.
What about mortgagors ignoring possession orders? What about landlords ignoring possession orders where their investment has been repossessed? Why is a tenant ignoring the legal requirements of a possession order guilty of a worse crime?
Sorry I meant to add that I have on countless occasions in the past 29 years I prevented eviction under warrant even on the day the warrant was due to be executed because for a variety of reasons the proceedings were not Kosher and/or the situation changed dramatically after the issuing of a possession order.
As Lenny Kravtiz sang “It aint over, till its over”
Tenants who fail to comply with the date for possession in an order are not always ‘wrong’:
– The tenant may have genuine grounds for appeal
– They may be forced to remain by the local authority threatening that they will not be re-housed if they don’t
– Etc
Court rules have to be drafted to take account of all circumstances.
Personally (and I would be interested to hear from other lawyers on this) I think the chance of ANY Judge granting an application for a penal notice to a landlord in a standard repossession claim, save in very exceptional circumstances, is about as likely as the Judge doing a tap dance on his desk while making the order, while singing rude ditties.
Because landlords are supposed to enforce possession orders via the bailiffs or HCEOs.
If a landlord serves any notice or letter on the tenant suggesting that they may apply for a penal notice (and by doing so suggesting that the application is likely to be granted) when the likelihood that this will ever happen is virtually non-existent – then I think that would be classed as harassment.
Rendering the landlord liable to prosecution and a civil claim for damages.
What do others think?
“They may be forced to remain by the local authority threatening that they will not be re-housed if they don’t”
That does not change the position. Obviously the tenant is between a rock and a hard place, but that does not make it ‘right’ to ignore a court order.
When I wrote that the rule book should be rewritten, this is one aspect to rewrite: The system should be such that court orders are obeyed and thus local authorities should have a duty to re-house by the deadline decided by the court.
“If a landlord serves any notice or letter on the tenant suggesting that they may apply for a penal notice (and by doing so suggesting that the application is likely to be granted)”
If an application is possible then I can’t see how it would be unlawful to notify the tenant that this is the landlord’s intended course of action.
This does not suggest that the application is likely to be granted unless this is what is explicitly written in the letter. Even if the letter does suggest that, I am not convinced that this will be legally ‘wrong’.
And for mortgagors Romain? :)
In fact, a tenant who does not leave after a possession order does nothing wrong at all. The Housing Act 1988 is utterly clear on this issue and the House of Lords (as it then was) has also been clear.
A tenancy under the Housing Act 1988 such as an AST continues until a Court Order is obtained and “executed”. This wording is explicitly found in s5(1A). So a tenant who does not leave when a landlord obtains a possession order is still a tenant and is continuing to act as such. The tenancy is only ended when the landlord obtains a bailiff’s warrant and enforces it.
These penal notices are unlawful harassment under the law as it stands.
An application for a penal notice is only possible in relation to an injunction order which explicitly orders a person to carry out a specific action. The Court has no power at all to apply one to a possession order and suggesting that they can or might is harassing behaviour.
Again, the fact that the tenancy continues is separate.
It is intrinsically wrong not to comply with a court order: In this case the court orders the tenant to give up possession of the property by a certain date.
Interestingly, the original version of the Housing Act 1988 did not include the explicit provision that the tenancy continues until the order is executed.
I think that the amendment was not thought through and should be reviewed.
Lastly, it does seem that courts have the power to apply a penal notice to a possession order, though obviously they only do it in exceptional cases. It also seems possible to request the court to reissue a possession order to add a penal notice.
See Tuohy v Bell [2002], De Grey v. Ford [2005] or Bank of Ireland v. Dubash [2015] for example.
I just had a word with barrister Sam Madge Wyld about the post above and he said:
“Broadly agree. A judge can in theory attach a penal notice to a possession order if asked, but it is very rare. In Webb v Markos [2011] EWCA Civ 1564, the Court of Appeal (albeit in the absence of representation from either party) did not overturn the decision of a judge to attach a penal notice to a possession order.
Certainly, the chap in your seminar was acting unlawfully because penal notices weren’t being attached to the orders by the judge”
Hence why I stressed “carefully drafted” letter.
Based on the above, I think that a letter threatening to apply for a penal notice will not be unlawful.
What I do not understand is why the councils cannot be prosecuted for contempt of court when they instruct tenants to disobey a court order
Very interesting, thanks for posting.
I understand and agree with the legal arguments.
However what has not been mentioned, is when or if a tenant is staying on in a property with no intention of paying rent;
– it is Thieving.
Which is not a victimless crime, even if you discount the poor old fatcat landlord.
Because every time some toerag exploits the system, even more honest, decent, paying tenants face increasing rents, intrusive checks, forced fast track eviction, and adverts stating ‘No DSS’, which all of society ultimately pays for.
Dress it up how you will, Thieving is Thieving.
“What about mortgagors ignoring possession orders?”
Different kettle of fish.
It isn’t easy to become a serial multiple mortgage defaulter and it is a very lengthy process to buy a property with lots of upfront cost. Do it once and it is very difficult to repeat.
People don’t stop paying the mortgage as a lifestyle choice. But if they could and if they did, then yes, as an ultimate resort, they should be banged up, it is thieving.