This is a question to the blog clinic from Joanne who is a landlord.
We moved abroad for 6 months and let our house out using a letting agent.
When we returned to UK the tenants refused to leave. We are currently forced to live in our caravan with our children, dogs and cats. We’ve been living in it for 8 weeks now. The tenant has also not paid rent since her tenancy expired 8 weeks ago.
We are waiting for a possession order and then hope to transfer the case to high court. We have the most incompetent solicitor, he has kept making mistakes. How long does it usually take for the county court to transfer a case to high court please.
Thanks very much for any advise given
Answer
Presumably, the case is to be transferred to the High Court because you want to have the possession order enforced by the HIgh Court Enforcement Officers (HCEOs) rather than the County Court Bailiffs.
People sometimes do this if they are worried that the County Court Bailiffs will take a longer time to make an appointment and think that the HCEOs will do a better job.
HECOs are also used sometimes where landlords are worried that the tenants will cause problems during the eviction – for example, offer violence or be obstructive. They are often used for example during difficult squatter cases where squatters are politically motivated.
However my experience when I did possession proceedings was that tenants almost always take steps to have left the property before the bailiffs arrive. It is very rare for them to still be there. So the important thing is just to get the appointment. Why are your tenants refusing to move out – do you know?
Many tenants fail to move out because they want to be re-housed by the Council, and the Council have refused to do this until a possession order has been made. However, the Council will always ensure that the tenants are re-housed before the bailiffs are due to come round to evict them. So the main thing is to ensure that no time is lost in making the application as soon as you are able.
It used to be that the HCEOs (also known as the Sheriffs) would offer a quicker service but this was mainly because they were using an illegal procedure (see here).
The HECO route is not particularly quicker now due to the time it can take to transfer the case to the High Court and the various applications and permissions you will need.
Also, a request to transfer up will generally be refused if the Judge cannot see any particular reason for using the Sheriffs rather than the County Court Bailiffs – in which case you will end up using the bailiffs anyway having wasted time in making the application.
The only time I tried to do it (where someone needed vacant possession urgently to sell the property to finance a major operation), I think it took about four to six weeks. It did end up being quicker than using the bailiffs in the end – but only just. And it was significantly more expensive.
I agree that your case is urgent, but a Judge may not see this as a reason to use the HCEOs. Unless maybe you are able to show that the waiting time for a bailiffs appointment in your court is unusually long and that the HCEO route will be significantly quicker. Do your solicitors have evidence of this?
I would suggest you get in touch with your solicitors and ask them what stage in the proceedings they have reached (i.e. have they got the possession order yet) and why in particular they are looking to transfer this case to the High Court.
“the Council will always ensure that the tenants are re-housed before the bailiffs are due to come round to evict them.”
Heaven loves an optimist.
Sorry Tessa but in areas of high homelessness demand, particularly London a tenant will likely be left until bailiffs. The council must take on the case as an official homelessness one when the possession order is granted but in terms of providing accommodation they will often wait until the last minute, simply because they often just dont have anywhere to put people and the law prevents them from placing families in B&B for longer than 6 weeks.
On top of that, thanks to Nzolameso v. LB Westminster, placing homeless applicants in accommodation out of area, where their benefits match the local rent levels has made life even more difficult for councils to source and provide accommodation
So are Council’s now leaving tenants in situ for bailiffs and sheriffs appointments? Surely they move them out to B&B at least?
No T not at all, in most of London anyway.
The average homelessness unit in the capital gets around 5,000 to 6,000 approaches in a year. people I know at Croydon tell me last year they saw 6,324, and DCLG figures released in August based on statistics provided by the local authorities nationally reveal that 39% of all statutory homeless cases come in because of tenancies being ended by s21s. Its the biggest single reason and has risen exponentially in the past 5 years.
If a council owes a duty to provide temporary accommodation they first have to find it and it must be affordable. The maximum benefit level for a family is around £500 per week, which includes rent and everything else now. A family needing a 3 bed house will be looking at something like £1,600 to £2,000 per month, depending on which part of London, which swallows up all the benefit, effectively pricing them out, which is why they look out of borough for placements where the rents are lower but when they do that they get challenged, as per Nzolameso.
A combination of shortage of properties being offered, a shortage of hostel spaces, the cost of B&B, the benefit cap and the sheer amount of people making homelessness applications drives the decisions to force people to wait until the warrant
Its all very well landlords and housing rights groups jumping up and down about people being expected to wait until the warrant but where do you put them in the current climate?
“39% of all statutory homeless cases come in because of tenancies being ended by s21s. Its the biggest single reason and has risen exponentially in the past 5 years.”
Section 21 is the method, not the reason.
9 times out of ten the reason is rent arrears or ASB.
Section 21 is being used because section 8 is unfit for purpose.
From the landlord’s point of view, they are not interested in all that. They (like the lady in the article) just want to get their property back asap. What then is the best way for them to do this?
Some people believe that using the High Court Enforcement Officers will be a quicker route to getting possession.
I’m not convinced it is. Mainly because (1) it is no longer (now they are forced to use the correct procedure) a quick process to transfer up to the High Court, and (2) because many Judges will refuse to agree to it anyway.
The main reason for Judge’s agreeing to a transfer to use the HCEO is that the eviction will be a particularly difficult one. However, if the tenants are not in the property at the time the bailiffs or HCEO’s go round, there is not going to be any problem.
So the main thing, again from the Landlords point of view (and we are advising a landlord here) is to just get on with it and ensure that the appointment takes place asap.
If the tenants are eligible for rehousing, then the LA normally, in my experience anyway, ensure that they are out of the property by the time the bailiffs come around – even if it is just in b&b. So far as this advice is concerned, the landlord is not concerned where they go to – so long as they are gone.
Are you saying therefore that it is now common practice for LAs not to move those eligible for rehousing out the property before the bailiffs’ appointment so that they are still in the property when the bailiffs arrive? Surely that is a breach of their duties?
In London its been common practice for as long as I can remember. The landlords cant actually do anything about this, as they are not the homelessness applicant. I doubt they could even seek judicial review of a council’s decision as their statutory duty is to the applicant not the landlord.
Council’s arent automatically in breach of their duties. R v LB Newham ex p. Ugbo tells us that a council shouldnt always advise an applicant to wait for the warrant but Croydon v. Jarvis (1994) tells us that as long as the council in deciding the applicant can wait for the warrant, have shown that they have had regard to the landlord’s position, the tenant’s position AND the position of the local authority, in respect of available accommodation then they can expect the applicant to wait for the full term.
Well, I can only remember about five or six times, in all the 20 years + that I did eviction work, that the tenants were actually still in the property at the time of the bailiff’s appointment (and one of those was a mortgage repossession case in the 1980’s).
I’m not talking about the LA dealing with it late, I know that always happens – I am talking about the LA actually letting the tenants stay in the property (when they are entitled to be re-housed) leaving them to be physically evicted by the bailiffs – when they should have been re-housed by the LA.
My experience was that if the tenants were entitled to be re-housed, they would be moved out before the appointment.
I agree, if that does not happen, there is no liability to the landlord. However, the Council might be vulnerable to a claim by the tenant for putting them in such an embarrassing possible!
But I have a feeling that we are at cross-purposes.
Councils don’t “let” the tanants stay. Some tell them to stay and say that if the tenants leave earlier they will be considered to be voluntarily homeless and not entitled to be re-housed.
They have been doing this for years – https://www.theguardian.com/money/2008/aug/31/debt.renting
I read recently of a case where the landlord did successfully sue the local authority on a costs issue. I’ll see if I can track it down
I evicted a tenant on 27 September. He had been in contact with the Housing Office since the Section 21 was issued in February. He is a single dad with two small daughters.
The bailiff appointment was 10.30am. The tenant handed over his keys and went straight to the Council – where he spent the next few hours..
The Council gave him the keys to a flat (temporary accommodation) at 4.45pm.
This is pretty much the same as the family I evicted in July 2016.
I’m in Kent.
The you go Peanutte, Kent is not Walthamstow
I am afraid it is the same in North Essex. I had someone who had gone all the way through the eviction process due to be evicted nov, she was nine months pregnant at the time, plus three other children. The council could not at that time rehouse them even to temporary accommodation. They got me to cancel the bailiff and promised there would be accommodation first week Jan. Me being a softie said as long as I got the rent I would go along with it. To cut a long story short it took until July to get rid of them, and then it was a case I was going to the papers and sit outside the housing officers office until it was solved.
As for agents we have tried a couple of times to go down that way, no way could they be called rogue or bad, it is just they are a business and do not care for the property as you would. My main problem I had with them they will put Tenants in who tick the boxes, not Tenants who will care for the property and pay the rent on time.
I concur with what has been highlighted above. Stoke Council are advising tenants to avoid court orders and advising them to stay in the property until the bailiffs arrive. My tenant agreed to surrender the property to me a few weeks ago which was the day after the court order expired. Two hours before she was due to give me the keys Stoke council housing solutions department rang me to advise that the tenant would not be leaving as they had just advised them to stay and force me to pay for bailiffs. As you can imagine I wasn’t impressed. This is from a council which wants to work in partnership with local landlords !!!! The tenant has paid no rent for 5 months. I now have to wait another 6 weeks for the bailiff (with no rent). I’ve complained but it’s fallen on deaf ears. The councils are encouraging people to break the law (by ignoring a court order). It’s cheaper for them to let my tenant stay in my house rent free for another 6 weeks rather than pay for B&B
Mark a tenant not moving out after a possession order has been granted is not breaking the law in any
way, shape or form.
If they do not leave upon expiry of the notice, then it is incumbent upon the landlord to obtain a warrant of eviction, then they can be removed by force if necessary.
Stage one is the notice
Stage two is the possession order
Stage three is the warrant.
If the tenant vacates at any point in those stages and most do, then all well and good but sometimes the landlord has to go the full distance
And what this post was about was whether it was worth the landlords while going through the extra bother and paperwork and applications to get the possession order transferred up to the High Court so the landlord can use the High Court Enforcement Officers / Sherrifs service.
We all know Councils have been telling tenants to stay put forcing the landlords to use an enforcement procedure, they have been doing that for years. Certainly, as long as I was doing eviction work and I go back to the 1990’s.