Speedy evictions – The whys and wherefores

by David Asker

17:56 PM, 15th October 2014
About 4 years ago

Speedy evictions – The whys and wherefores

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Speedy evictions – The whys and wherefores

Much has been said recently regarding the so called ‘Speedy Evictions’ offered by High Court Enforcement Officers (HCEO) and I thought it sensible to give you an honest insight of this service. Speedy evictions - The whys and wherefores

OK, first things first is why would you need to use an HCEO?

Unfortunately, due to significant cuts in the Court Service the delays in enforcing an order for possession by a County Court Bailiff (CCB) are usually considerable, often ranging anywhere from 6 to 16 weeks. We have heard of one Court recently quoting nearer 6 months. In comparison, most HCEOs can carry out an eviction within days.

What law is used to transfer the eviction to an HCEO?

By virtue of Section 42 County Court Act 1984 a matter can be transferred to the High Court for enforcement. The order itself remains with the County Court, it is literally just the enforcement aspect that is transferred the the High Court.

Is the tenant always notified of the eviction date?

This has many people divided and I can see both sides of the argument. A CCB will always send notification of an impending eviction. This will allow the tenant to prepare for the eviction and making other arrangements for housing and hopefully packing and leaving before the day of the eviction. Some would argue it allows the tenant time to delay proceedings initiating further court applications with the sole intent of buying time (and costing the Landlord further in the process). At present, HCEOs are not required to give such notice although I believe it sensible to do so. It is therefore at the Landlord’s instruction as to whether my firm send notification first.

OK, I want to use an HCEO, can I?

The decision to permit the transfer of enforcement to the High Court is, ultimately, at the discretion of a Judge. My office has seen significant inconsistencies across Courts in the UK. It is clear to us that requesting this in your initial application for possession has better results than requesting it after the order has been granted. The request MUST include the reason for the transfer. This will almost certainly be the delays by the CCB and the loss of income and potential damage to the property. We are happy to give advice on specific wording which works in our experience.

I’ve got my S42 transfer, what now?

If the tenants don’t leave before the possession date, you can now instruct an HCEO, who will apply for the writ of possession (a court fee of £60 is payable), and then conduct the eviction.

Is it more expensive to use an HCEO than a CCB?

In a word, Yes. HCEOs charge anywhere from £300 to around £800 for a standard residential eviction compared to the £110 for a CCB. It’s a commercial decision and will come down to whether you are prepared to lose the potential rental income from the CCB delays.

Can I recover my rent arrears also?

If you are also owed rent arrears on the property, you can add a claim for money to the possession order, so that you do not need to apply separately for a judgment and writ of control. However, there is currently an anomaly where from April the HCEO must give 7 clear days notice of the intention to enforce the debt aspect. If you are not notifying the tenant of the eviction this could make them aware of the intended visit. If you do notify them then it could mean the HCEO can seize any goods on site if they are of any value (most aren’t).

What else should I know?

It is true that HCEOs are often more determined than the CCB and will succeed where the occupants are difficult, sometimes barricading themselves in, climbing onto roofs and assaulting enforcement agents. We have great experience in the eviction of difficult tenants but you should be aware that the costs will often increase for this service.

So, who should I use?

Well, if the CCB can do the job promptly and your tenants will not put up too much of a fight, that is the obvious way to go. If not, the the HCEO is your man. Simple!

EDITORS NOTE

David Carter is Chief Executive of The Sheriffs Office, a company of authorised High Court Enforcement Officers and Certificated Bailiffs.

Contact The Sheriffs Office



Comments

Tessa Shepperson

12:43 PM, 16th October 2014
About 4 years ago

Just a quick comment to say that when I tried this, the main problem is getting the County Court Judge to agree to the transfer to the High Court for the Sheriffs to be able to do the eviction.

Either (when we asked for it in the original court proceedings) the Judge just refused saying he did not see the need, or (when we applied for the transfer after the order had been made) it took such a long time we might just as well have left it to the County Court Bailiffs.

Many Judges are very unhappy about the possibility of the sheriffs going round without notice having been given to the tenants first (and this is a reason why they will often refuse consent). I agree that this is serious bad news.

Most tenants will stay in the property because they have been told to by the homelessness dept. Once the bailiffs appointment is made the local authority will then make sure they are rehoused so they can move out before the bailfifs date.

However this will not happen if the sheriffs just turn up out of the blue. You will then be left with where do they (and their children) go and what happens to all their stuff which is in the property?

When I did eviction work (and I did eviction work for over 20 years) it was very rare indeed for the tenants to still be in the property at the time the bailiffs went round. I think it only happened in a handful of circumstances. Which is why I decided to carry on using the court bailiffs (who are after all a lot cheaper) and not pursue the Sheriffs route.

I think there are times when the Sheriffs service is a good idea (for example if you are in London and there is a compelling reason to get the property back quick) but it is not straightforward and in most cases it is probably best to leave it to the bailiffs.

David Asker

9:58 AM, 17th October 2014
About 4 years ago

Hi Tessa,

I welcome your comments and agree with much of what you have said.

In terms of the use of HCEOs (Sheriffs as you say) as I mentioned it is not always the best route to take and really comes down to the individual circumstances of a case.

I would say that in the last 6 months we have seen Judges granting the Section 42 transfer more readily as even they can see the issues caused by the County Court Bailiff delays. This is further aided by our guidance on what should be put in the application. Accordingly, we have seen evictions take place in a matter of days rather than months.

I would also advise that it is for the Landlord to decide whether he wishes us to give notice. I would estimate that most don't but this is usually where the tenants have been difficult and damage to property is a concern. i would recommend 7 days notice is given in cases passed to us.

As High Court Enforcement Officer we would all like to see a change in the law to give Landlords a choice of enforcement option without the need for a S42 transfer. In my opinion any change in law should be accompanied with a legal obligation for an HCEO to give at least 7 days notice.

This notice requirement could be removed with leave of the court for specific reasons protecting Landlords where damage to property or other serious issues are occurring. We currently see this in the enforcement of money judgments where with court permission the notice is not sent due to a variety of reasons, one being that the defendant is selling goods to avoid their seizure.

In terms of a law change the MoJ has already stated 'watch this space' with a review of what work HCEOs can do scheduled for April 2015. Hopefully Landlords will finally be given an enforcement option in the near future.

Romain Garcin

10:30 AM, 17th October 2014
About 4 years ago

Hi David,

If I understand correctly HCEOs cannot carry out an eviction until after the possession order expiry date.

If so, the tenant has already had plenty of notice and knows when he will be breaching the court order and should, at that point, be expecting bailiffs/HCEOs at any time.

It seems to me that further notice, as given by county court bailiffs, only leads to some tenants ignoring the court order until they receive notice from the bailiffs because "they have still time".
Councils are also known to play the system by giving exactly that advice to tenants.

Perhaps if tenants knew that there wouldn't be any further notice it would make them take the date on the court order more seriously and arrange to leave by then instead of by the date given by bailiffs.

In my view a compulsory notice by HCEO would be fine if it could be given to expire on the same date as the possession order's.

David Asker

10:39 AM, 17th October 2014
About 4 years ago

Romain,

You are of course correct and I agree with your thoughts on the expiry of any notice.

It's getting the MoJ to agree to it that may prove the difficulty. We as an industry are certainly putting the case forward but without the support of those that it affects it could well fall on deaf ears.

I have some thoughts on this so watch this space.

Mark Alexander

11:10 AM, 17th October 2014
About 4 years ago

Reply to the comment left by "David Carter" at "17/10/2014 - 10:39":

Maybe we could help you to promote a campaign?

If you could also get the landlords associations to back this I suspect your chances of success might be high.

Have you, as an organisation, considered a judicial review into the time taken by the Courts and their baliffs?

How many members do you have?

If there is enough of them, and they could be persuaded to chip in say £100 each, that may produce a decent fighting fund for marketing a legal work. I could certainly help you with the marketing as I have several press contacts as a result of the groups formed to take on the West Brom and the BoI over tracker rate margin hikes. What I have also found is that if landlords can see the benefit to them, some will also actively support your campaign.

It all comes down to your own membership first though. If they can see the benefits (additional work) and are prepared to commit some time and money into a focussed campaign it could turn out to be the best piece of marketing they will ever do.

The Courts and their Baliffs are bursting at the seams. Landlords are struggling because the systems in place to deal with evictions are inefficient in terms of mitigating unnecessary financial hardships. It is time for change!
.

Monty Bodkin

11:19 AM, 17th October 2014
About 4 years ago

"Most tenants will stay in the property because they have been told to by the homelessness dept. Once the bailiffs appointment is made the local authority will then make sure they are rehoused so they can move out before the bailfifs date. "

In which case homelessness dept's need to stop routinely waiting for bailiffs dates and start working with landlords by following their own code of guidance;

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/7841/152056.pdf

The Secretary of State considers that where a
person applies for accommodation or assistance in obtaining accommodation,
and:
(a) the person is an assured shorthold tenant who has received proper notice in
accordance with s.21 of the Housing Act 1988;
(b) the housing authority is satisfied that the landlord intends to seek possession;
and
(c) there would be no defence to an application for a possession order;
then it is unlikely to be reasonable for the applicant to continue to occupy the
accommodation beyond the date given in the s.21 notice, unless the housing
authority is taking steps to persuade the landlord to withdraw the notice or allow
the tenant to continue to occupy the accommodation for a reasonable period to
provide an opportunity for alternative accommodation to be found.

David Asker

11:26 AM, 17th October 2014
About 4 years ago

Mark,

That is exactly what we need and I even have a full government petition written detailing all of the legal points by a Landlord client. Unfortunately they do not wish to be the one that leads it.

As it would not be appropriate for me to lead it either we need somebody within the property industry to do so.

The Sheriffs Office would also happily support such a petition and would promote it to our database of 130,000.

Happy to hear any suggestions.

David Asker

11:29 AM, 17th October 2014
About 4 years ago

http://epetitions.direct.gov.uk/how-it-works

100,000 signatures is a real possibility I believe and if done soon it could form part of the MoJ enforcement review in April 2015.

The petition really MUST be kept simple though, addressing a few key points only.

Mark Alexander

11:29 AM, 17th October 2014
About 4 years ago

Reply to the comment left by "David Carter" at "17/10/2014 - 11:26":

Hi David

Database of 130,000 what, landlords?
.

David Asker

11:31 AM, 17th October 2014
About 4 years ago

Reply to the comment left by "Mark Alexander" at "17/10/2014 - 11:29":

No, it is split between solicitors, businesses and landlords.

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