Missed Bailiff appointment  query

by Readers Question

15:02 PM, 22nd June 2015
About 3 years ago

Missed Bailiff appointment query

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Missed Bailiff appointment  query

Hello all, I have a quick question.

I am a landlord and have gone through the eviction process. I had a warrant of posession which was due to be executed today. I was at the property at the appointed time but the bailiff never showed up. I rang up after 20 minutes (initially thinking bailiff was running late) only to be told bailiff had been at the property and I was not there so had left! Missed Bailiff appointment  query

I was at the property 10 minutes before the appointed time but they insisted the bailiff was there and I was not.

The property can be tricky to locate as post code does not bring you directly to the street, but anyway…

Anyway, looking through the window, I can see the tenant has left the property, which is in line with my expectation as she was a council tenant, and I am aware they tend to leave the day before the bailiff appointment.

No posessions have been left in the property, apart from two beds and mattresses which I can see from the window outside (no curtains).
I asked on the phone what my options were, and they said I could either request a new bailiff appointment (at a cost of £110 and a further delay of 3 weeks), or if I was sure the tenant had left, I could withdraw the missed bailiff request/warrant, and just enter the property.

Do you have any experience of a situation like this? I do not want to break the law, but I do not want to wait for 2 or 3 weeks before I get access to the property when I am sure the tennant has left. My only concern at the moment is the 2 beds and matresses which have been left in the property.

Will the council know if the warrant was not executed? (in which case they may ask the tenant to move back in).

I hope to have your replies soon.

Thanks

Ern



Comments

Mark Alexander

15:04 PM, 22nd June 2015
About 3 years ago

I have invited Tessa Shepperson from Landlord Law and David Carter from The Sheriffs Office to comment.
.

Tessa Shepperson

15:16 PM, 22nd June 2015
About 3 years ago

It sounds to me as if it would be reasonably safe for the landlord to re-enter. See my article on Implied Surrender here http://www.landlordlawblog.co.uk/2010/08/11/landlord-and-tenant-law-implied-surrender-explained/

Ross McColl

16:06 PM, 22nd June 2015
About 3 years ago

Possession has been granted and as far as the tenant is aware the bailiff has been and repossessed the property. The council will have re-housed the tenant and they will not be interested in checking whether the bailiff actually carried out the warrant. Insist that you were at the property on the date/time specified and demand you speak to the bailiff area manager or similar if they are not willing to re-book your appointment free of charge. Go to the property and change the locks. The door was ajar when you arrived so you owed a duty of care to secure it. Keep her goods for 14 days if you so wish.
All the best.

David Asker

16:07 PM, 22nd June 2015
About 3 years ago

I would agree with the above, it should be no issue for you to enter the property.

I would be inclined to take a witness and film your entry and the contents on your mobile phone just to be safe.

Ern Collison

17:05 PM, 22nd June 2015
About 3 years ago

Thank you all for your comments so far. Tessa, I posted the same question on your blog clinic, so apologies for the repetition....... I had also read your articles on implied surrender (which you have linked to above), but still had my doubts as nothing is ever black and white it seems!
Ross, thanks for your comment. Everything is as you state, however the door was not ajar. Doors and windows were all locked. The information I put in the note above was obtained by peering into the house through the windows as there were no curtains.
Sitting room was completely empty apart from the fridge which I had purchased brand new when she rented the property (thank God she didn't steal it), and a small table, again this is my table that I left in the property when she rented it.
All her possessions, she had taken with her.
Through the upstairs windows, I could see the beds and the mattresses (she had stood them up on their side so I could see them through the bedroom windows). These beds and mattresses are the only things that belong to her that were still in the property.
Thank you all for taking the time to respond.

Ern Collison

17:19 PM, 22nd June 2015
About 3 years ago

Please note I also read a comment from Ben Reeve Lewis on Tessa's website stating, and I quote,
"The Protection from Eviction Act itself offers a possible get out:-
“shall be guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”"

It seems to me (in my layman's understanding), that I have reasonable cause to believe that the residential occupier has ceased to reside in the premises given the details I noted in the initial post.
Thank you.

Tessa Shepperson

17:26 PM, 22nd June 2015
About 3 years ago

There are two things to consider when changing the locks in this situation:

1, Criminal prosecutions for unlawful eviction under the criminal law, and
2. Claims for compensation by the tenant for unlawful eviction under the civil law

I think it highly unlikely in these circumstances that you will face any criminal prosecution - the local authorities have enough to do.

It is also unlikely that the tenant will bring a claim for compensation under the civil law. For a start, I think her case would be very shaky. Then - does she actually know that the bailiffs appointment did not take place? As if it had she would have no claim ...

Steve Masters

10:27 AM, 23rd June 2015
About 3 years ago

Important:
The bailiffs will not knock or ring, they will wait for the landlord OUTSIDE the property, so arrive early and wait outside. Do not enter the property even if the tenant appears to have left, you might miss the bailiffs.

However, in this instance I think it safe to assume that the ex tenant will assume that the bailiff attended and therefor she will not contest possession.
Did the tenant leave keys behind? This is a very good indication that they have handed back possession.
Just to be on the safe side you should store her last remaining belongings for at least 14 days, then you can dispose as you see fit.

Robert Mellors

10:43 AM, 23rd June 2015
About 3 years ago

When you say that "she was a council tenant" I presume you mean that the council have offered to re-house her upon eviction? Or do you simply mean that her rent was being paid by Housing Benefit by the council?

All of the above postings seem to be good advice, but if you are still concerned you could perhaps also send her an abandoned letter asking her to contact you within 7 days if she has not moved out of the property. It's probably a pointless exercise but it provides additional documentary evidence that you took all reasonable steps to establish that she had moved out before you changed the locks.

Ern Collison

19:37 PM, 28th June 2015
About 3 years ago

Thanks all for your comments. Steve, the property is tricky to access. The post code takes you to the back of the house and you have to walk around to the front (the path is not easy to find). I was there early, in fact I got there an hour early, went to town, and came back about 15 mins before the appointment. However, I was switching between staying at the back (as I thought they would arrive here and I could walk them to the front), and staying at the front. I'm assuming they already knew their way around and just went to the front, but I still don't see how they would have done that without me seeing them even if I was at the back....
She left the key to the front door in the keyhole (inside the house) and left via the back door- she didn't leave the key for that, so again, another 50-50 situation.
Robert, they paid her housing benefit directly to me. I don't know if they offered to be house her. Anyway, the council have already written to me to say they are no longer paying her housing benefit (with an end date of the date of eviction). They have also sent letters demanding council tax from me starting from the date of eviction. These both se to indicate to me that from their point of view she is no longer a Tennant there.
In addition to the above, the fridge (after I finally mustered the courage to go in) was empty apart from a ton of peas, and it was off and defrosted. There was no electricity supply and the prepayment meter was in debt of about £18. So in combination, I think as you all have mentioned, I should be ok.
Thanks for all your advice.

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