Judge threatens to throw us out of court because we took 11 months to instruct Bailiffs!

by Readers Question

11:13 AM, 12th January 2016
About 3 years ago

Judge threatens to throw us out of court because we took 11 months to instruct Bailiffs!

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Judge threatens to throw us out of court because we took 11 months to instruct Bailiffs!

Our tenants owes us in excess of £5000 in unpaid rent.I am the law

Is 11 months from possession date too long to instruct bailiffs?

We used the accelerated possession procedure to get a possession order, which was granted January 2015. The tenant then attempted to start paying the rent, so we held off instructing the bailiffs in the hope they could sort it out (Everyone Deserves a Second Chance), or so we thought. The tenant continued to accrue arrears, albeit at a much slower pace, so in December 2015 we instructed the county bailiffs to carry out a warrant, which was due to take place last week. The tenant got an emergency hearing the day before the eviction for an extension, supposedly due to not having enough notice.

IS 11 MONTHS NOT ENOUGH??

The judge wasn’t interested in the fact the tenant hadn’t paid the rent, so he gave us a choice.
Option 1: Grant the extension then wait another month before having to re-instruct bailiffs (We challenged this, at which point he provided Option 2):
Option 2: I will throw the case out of court completely – on the basis that 11 months have passed and you have taken rent from the tenant, thereby creating a new tenancy, which will invalidate the possession order you currently have in place.

We were disgusted by the approach the judge had taken but were forced to accept option 1 for obvious reasons.

Has anyone else every had such an experience?
Does this have any legal foundation?

Thanks in advance
Ross



Comments

Tessa Shepperson

11:51 AM, 12th January 2016
About 3 years ago

My understanding is that the Judge is wrong and that you should be allowed to proceed. In fact you have up to six years to instruct the bailiffs before you need to request leave of the court.

See here http://www.landlordlawblog.co.uk/2015/11/19/can-a-landlord-still-enforce-an-order-for-possession-seven-years-after-it-was-granted/

Accepting rent should not change this. However giving the tenant a new tenancy agreement will.

John MacAlevey

11:52 AM, 12th January 2016
About 3 years ago

Civil servants suffer, from the outset, the `Bottomless Pit of Somebody Else`s Money Syndrome` this judge is no different.

I feel for you.

I`ll be retiring in 3 years will definitely come out of the PRS completely.

Paul Franklin

12:00 PM, 12th January 2016
About 3 years ago

Sounds very frustrating to say the least. Although it does raise the question of how long a possession order should remain valid for if the tenancy continues on.

I guess this is why solicitors letters tend to state that money due after notices expire is for 'use and occupation' and not rent.

On my reading of s.5 Housing Act 1988, the tenancy continues until a possession order is executed. In that respect the existing tenancy continues until bailiff warrant, no tenancy ends or is created in the meantime. But who am I to say.

Claire Sandbrook

12:47 PM, 12th January 2016
About 3 years ago

Not sure it helps for this case - but in hindsight - which is always wonderful (NOT) you could have applied at the time of your claim for possession for the enforcement of your possession order to be transferred to the High Court for enforcement. This one liner in your claim form would have given you some options when it came to enforcement. You could have instructed an HCEO (like me) to collect the rent and/or take back possession - and allowed us to negotiate for you at the door - so to speak! With the express permission of the Court in your order we can be at the address within days of the order being granted and we can help you decide whether eviction or collecting arrears will work. We would have 12 months to collect arrears if you wanted to give someone a second chance. Best thing is we do the preparation of the instruction for no charge - and we charge fixed fees for possession. If the debtor pays any of the money judgment we can charge our fees for managing the collection to them. Perhaps worth thinking about for the future! And we answer to High Court Masters who are very pragmatic about enforcing the court's order. Might help you in the future as well!

Charles King - Barrister-At-Law

13:13 PM, 12th January 2016
About 3 years ago

The judge is wrong and you would have good grounds for appealing, but the time it would take for an appeal to be listed would exceed the month the judge gave you in option 1. In effect there is nothing you can do which is better than option 1. If you had taken option 2 you might have had a slightly better chance, but would have had to have brought an appeal, which you would have been silly to do without taking legal advice, which would have involved more delay and expense. You would have to pay the court fee to appeal, which would never be recoverable in practice from the tenant. I am sorry to say that this sort of experience is not uncommon in court. Oftentimes you will have a District Judge who knows very little about Landlord and Tenant Law. Public funding cuts have meant the time taken by bailiffs to enforce warrants is outrageously long. I am very sorry to say that you now share the bitter experience of many lawyers (like me) who come accross this sort of thing all too often. Whatever it is, it certainly isn't justice. I have had a similar case when I managed to find a senior judge who happened to be in court on the same day and who was prepared to hear the case afresh (because I insisted upon it and provided written reasons) and who eventually gave me a possession order, but that was the wrong procedure too, and I was lucky. I don't want to sound like I'm trying to drum up business for lawyers, but when you consider the cost of even one lost months' rent some clout by an experienced lawyer is often very much worthwhile, even if it involves apparently high up-front expenditure. I'm sorry you had this experience of our often useless legal system. All you can do is put it down to experience, and unfortunatly not be so merciful to your tenant next time. Heartfelt commiserations

Ross McColl

13:56 PM, 12th January 2016
About 3 years ago

Hi thanks for all your comments. If we had argued that no rent had been taken, but in fact monies had been taken for 'use and occupation', or 'mezzanine profits', would this have been a significant enough legal argument to force him to stand down and proceed with the warrant as planned. Many thanks

Charles King - Barrister-At-Law

14:26 PM, 12th January 2016
About 3 years ago

No. The judge had just made up his mind. His reasoning was confused. He was mixing up a situation where a landlord allows a tenant to remain in occupation and accepted rent after a breach of covenant and where a landlord has a cast iron right to possession having obtained a possession order which they are then seeking (and entitled) to enforce by a warrant. The tenant was not trying to set aside the original possession order, but was asking for more time before the possession order is executed. No tenant is entitled to more than 6 weeks delay after the making of a possession order based on section 21, so no extension should have been given. You were just unlucky with that judge.

Ross McColl

17:51 PM, 12th January 2016
About 3 years ago

Stimulated to do some more reading after your comments my understanding is that if I had classified and clarified payments received after the possession order had been granted as mesne profits, the judge would have been proven unequivocally wrong. Correct me if I'm wrong but if this happens again in the future I'll do my best to fight it. He was a district judge standing in by the way.

Romain Garcin

18:55 PM, 12th January 2016
About 3 years ago

Reply to the comment left by "Ross McColl" at "12/01/2016 - 17:51":

Hi Ross,

In the case of an assured shorthold tenancy, the law (Ie. the Housing Act 1988) is clear and explicit that the tenancy only ends when the court order is executed, and therefore there is absolutely not issue with accepting rent as it is indeed due.

This is enough to prove the judge unequivocally wrong.

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