New nightmares for landlords using High Court Sheriffs to evict tenants

I used to periodically get rung up by a nice man from one of the High Court Sheriff firms telling me how they did a much better job than the bailiffs.

“We can get you an appointment within 24 hours” he would tell me.

“Yes” I would reply, “I’m sure you can, but what about the time it takes getting the case transferred to the High Court and issuing the Writ?”

At that stage he would go a bit quiet.

What am I talking about?

Physically evicting tenants

When you get an order for possession, that is not the end of the line. It is still perfectly legal for the tenant to stay put and thumb their nose at you.

What you need to do then is get a court official to actually go round and physically move them out.

Normally these will be the County Court bailiffs. They are staff working for the County Courts who are legally authorised to do this work, provided you have your possession order and have made the application in the correct way and paid the fee.

The trouble is, in some of the busier courts, it can take you a very long time to get a bailiffs appointment – up to eight weeks or more sometimes.

This is very frustrating for landlords who are stuck with tenants who are not paying rent and not surprisingly they look around for a quicker option.

Enter the High Court Sheriffs. Or High Court Enforcement Officers (HCEOs) as is their official name now.

The High Court and the County Court

In our legal system, we have two courts. The High Court and the County Court.

• The County Court deals with most ‘ordinary’ claims, including virtually all possession claims. Although there are a lot of court buildings (albeit the number is shrinking) they are all part of the same ‘court’.
• The High Court (which is actually a complex of courts) deals with the higher value claims and also has a supervisory jurisdiction over all lower courts and tribunals.

Both courts have their own enforcement officers

The Court Enforcement Officers

• The County Court Bailiffs are employed by the County Courts. They are therefore often under a lot of pressure due to cuts in court funding.
• The High Court Sheriffs / High Court Enforcement Officers are authorised by the Court but are not employed by them.

The Sheriffs’ fees, therefore relate to the work that they do. Which means they have more incentive to do a good job.

They also have greater powers, one of which is that they do not have to give notice before taking action. Obstructing a Sheriff is also contempt of court which can result in arrest.

Both officers exist to enforce orders within their own court, so if you want an HCEO to enforce your County Court Order you have to follow the proper procedure.

Enforcing possession orders in the High Court

If you want the Sheriffs to enforce your possession order, ‘leave’ must first be obtained first from the County Court, under Section 42(2) County Courts Act 1984.

You can apply for this on the claim form or it can also be done after the possession order is made – in which case technically it does not need not be on notice – so you can apply to the County Court for leave without the tenant knowing anything about it.

Don’t expect your Judge to grant permission automatically though – many will refuse unless you give them a compelling reason why this should be done.

For example, one reason that could be persuasive is that there is a ten-week wait for a bailiffs appointment in that court and you urgently need to exchange contracts for the sale of your property.

However, even if you pass this hurdle and the County Court Judge agrees to your request, this is not, as pointed out by Nearly Legal recently, the end of it.  (See also Giles Peakers post here)

You then need to issue a High Court Writ – and for this you need to have permission from the High Court.

The law here changed last year and under CPR 83.13, the occupier (the ‘occupier’ mind, not just the tenant) must have notice of your application.

This is so that the occupier has the chance to apply to the court ‘for any relief to which the occupant may be entitled’. As illustrated by a recent case.

Nicholas v Secretary of State for Defence, High Court, Chancery Division, August 24, 2015

Here, Mrs Nicholas, who was in the process of challenging an order for possession which had been made in proceedings brought against her by her landlord, woke up one morning to find the Sheriffs in her home having entered and changed the locks.

Needless to say, she applied to the court to set the writ aside.

The court agreed with her, holding that if no notice is given to the occupier (as required by CPR r.83.13(8)), this is a sufficient basis to set aside the Writ of Possession after it has been executed. Which they duly did in this case.

(The case is not on Bailii but there is an Arden Chambers report)

Getting the procedure wrong

The Nearly Legal post also points out that some enforcement agencies are regularly issuing writs without getting proper permission first.

Unless the possession order is made against trespasses (and a few other exceptions) enforcement of a possession order by the Sheriffs via a writ of possession MUST involve notice of the application for the writ being given to the tenant/occupant.

The Judge will need to be satisfied that it was actually served on the actual occupier.

Conclusion

So the much vaunted ‘quick Sheriff eviction procedure’ turns out to be a hornets nest and, I would suggest, something to be avoided by DIY landlords.

If you do want to give it a go – make sure you use a firm of solicitors. Solicitors all carry professional indemnity insurance so if they get the procedure wrong and you end up getting sued for illegal eviction, you can pass the bill on to them.

There is also the question of whether it is right for there to be such hurdles placed before landlords who after all are only trying to enforce their legal rights.  Why SHOULD they be forced to house non-paying tenants for free?

Landlords who run large properties portfolios as a business can no doubt cover these costs (although I question whether it is right that any private landlord should have to do this) but it is very hard on, say, pensioners who rely on the rent from a property as their main income.

I know that the question of sheriff enforcement is something that Landlord Action have campaigned on. Are the landlord associations also doing something about it?

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NB Landlords can purchase legal expenses insurance to help with the costs involved with evicting tenants.