Are you sure your speedy tenant eviction was legal?

by David Asker

11:31 AM, 12th November 2014
About 4 years ago

Are you sure your speedy tenant eviction was legal?

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Are you sure your speedy tenant eviction was legal?

With the recent significant increase in the use of High Court enforcement officers evicting residential tenants it has become clear that not all of these evictions have been conducted legally. The potential cost implications for a landlord for incorrectly evicting a tenant can be huge as the claims for damages could not only come from the tenant themselves, but also from the Council that had to put them into emergency accommodation. David Carter - CEO of The Sheriffs Office

In the last 18 months the High Court enforcement sector has been flooded with small ‘franchise’ bailiff firms operating under the authority of a single authorised High Court Enforcement Officer.

It has come to light that some of these firms understanding of the law is lacking to say the least, offering guaranteed 7 day evictions without the need for transferring the County Court order for possession to the High Court for enforcement.

It is understandable that every landlord wants possession of their property without the lengthy delays regularly quoted by the County Court Bailiffs but the potential claim for damages off the back of an illegal eviction could literally be huge!

At present, a High Court enforcement officer can ONLY use a standard writ of possession to evict trespassers. This means squatters and NOT a tenant that remains in a property after a possession date.

Accordingly, to use a High Court enforcement officer to conduct and eviction of a residential tenant they MUST obtain leave from the County Court under Section 42 of the County Court Act 1984. Without this any writ of possession enforced in invalid and any action taken under it illegal.

If so, the tenant may have a claim for considerable damages from the landlord, the company that evicted them and the authorised HCEO personally.

If you have used the services of one of these franchise HCEO firms it would be prudent to now demand to see the order allowing the HCEO to undertake the eviction. Be advised this is not the writ of possession and is a separate standard court order. If they cannot produce this, you could be looking at a claim for damages landing on your doormat any day soon.tenant eviction

Contact David Asker

Director of The Sheriffs Office - High Court Enforcement Officers for Judgments & Eviction Notices


Comments

Mark Alexander

10:47 AM, 12th November 2014
About 4 years ago

Hi David

I've taken the liberty of inviting Mark Smith (Barrister-At-Law) to comment on this thread. My thinking is that a case of professional negligence exists, at least as a chose in action, and definite in the event of a claim for illegal eviction being made.

Presumably you know which companies have been providing this service and thank you for not naming and shaming them at this stage. Rest assured though, if a Court case comes up we will be doing exactly that!

So assuming you do know the businesses involved in this practice, do you know whether they would have Professional Indemnity insurance?

I always advice landlords to ask any professional advisers or agents for a copy of their Professional Indemnity policy, I will now add HCEO's to that list.

Scary stuff and thanks for bringing this to our attention.
.

Paul Shamplina

16:53 PM, 12th November 2014
About 4 years ago

Reply to the comment left by "Mark Alexander" at "12/11/2014 - 10:47":

I agree with David's comment's, I know from a regular source that some of these sub High Court Enforcement Officers are not obtaining the correct leave.

The service they say to landlords is that they can get 7 day evictions, which is not the case.

Firstly you have to obtain the leave at court on the hearing date, I know from experience and the many cases we run at Landlord Action, Most Judges will not grant the leave and take the work away from the court bailiffs, its the luck of the draw as to what Judge you have at the hearing. Then you have to rely on the admin of the relevant court to deal with the warrant to be transferred to a High Court Writ.

I have many senior people in the property industry asking about High Court Sheriffs, they did not know about the leave from court aspect and the admin process, which can take time. If you are successful, it can take unto a month and yes can save county court bailiff times We would also insist on giving the tenants 7 days notice of the eviction date, which some of these companies do not do, which in my opinion is bad practice, meaning tenant can not vacate when they go around to evict and landlord has to pay extra fees to Sheriffs because of waiting time.

David Asker

17:13 PM, 12th November 2014
About 4 years ago

Unfortunately Paul many of your competitors are using these firms too.

Neither they, nor the landlords they represent have any idea of the potential costs they could face when this all comes crashing down.

As I mentioned before, we have been contacted by various Councils across the country requesting proof of leave to enforce in the High Court.

What I would say is that here at The Sheriffs Office we ask our clients if they wish to send notification (in truth most don't) .

We also offer fixed price eviction services from as little as £549 which includes the £60 writ fee and £50 transfer fee.

Mark Alexander

17:23 PM, 12th November 2014
About 4 years ago

Reply to the comment left by "David Carter" at "12/11/2014 - 17:13":

The really worrying this here David is that it seems to be so widespread. My biggest concern is for the landlords as the agents will be deemed to have been acting on their instruction, hence they will have inadvertently committed criminal offences, and whilst the professional advice will be considered by a Judge as a mitigating factor it certainly very serious. As we all know though, ignorance is no defence in law!

It will be interesting to hear what Mark Smith has to say about this in terms of whether the professional advisers and the HCEO's and their representatives could also be charged with crimes of committing illegal evictions!
.

David Asker

17:30 PM, 12th November 2014
About 4 years ago

Reply to the comment left by "Mark Alexander" at "12/11/2014 - 17:23":

The individual authorised High Court Enforcement Officer who is lending his authority to these firms carries a personal responsibility for every writ that is executed and therefore would also be in firing line.

If he is deemed as not being in control of writs executed in his personal name (they will all state his name) then he could be struck off.

This is the problem when one HCEO dishes his authority out to all and sundry without understanding what is being done in his name.

I have worked in High Court Enforcement for over 10 years and the differences between it and 'normal' bailiff work are considerable and complicated. Unfortunately many small bailiff firms see it as a cash cow and undertake this work without the legal knowledge required to do the job correctly.

In doing so, several parties including the landlord could find themselves at the wrong end of a claim for damages.

Personally, I believe you could see these claims starting any day now....

Mark Smith (Barrister-At-Law)

19:29 PM, 12th November 2014
About 4 years ago

This is not a new concern, but one that is sure to come to prominence very soon. As Mark A rightly says, it could go beyond a civil claim against a landlord, into a criminal offence of unlawful eviction.

http://www.legislation.gov.uk/ukpga/1977/43/section/1

I would recommend any landlord who has used any service purporting to be an HC Bailiff to get in touch with p118, as indeed they should if they are challenged by a tenant or LA on what they have done.


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