There has been a bit of a ho ha at the courts about the sheriff’s enforcement procedure. This is where landlords transfer cases up to the High Court so they can be enforced by the sheriffs more quickly.
The problem
The problem initially came to light in a case last year, Nicholas v Secretary of State for Defence, initially reported by Nearly Legal and which I reported on here.
In this case, the defendant woke up one morning to find the Sheriffs in her house enforcing the possession order she was challenging, despite the fact that the court rules require notice to be given first before the Sheriffs can act.
It was then discovered that some Sheriffs were regularly by passing the proper procedure and getting writs issued by using a form intended just for squatter cases. I reported on this here.
The problem sorted
For some time, the Sheriffs were in denial about this and insisted that they were doing the right thing.
Partly through the efforts of Nearly Legal the matter was referred up to the relevant authorities, who agreed that the ‘quick’ procedure was wrong, had always been wrong, and that it should not be allowed to continue. So a new practice direction has now been issued.
This makes it clear that the ONLY way sheriffs can be authorised to evict residential tenants under a County Court Possession Order is after an application has been made to the High Court, which must be dealt with by a Judge not a court official, and that the order authorising the writ will only be made if it is clear that the proper procedure has been followed.
The proper procedure includes giving notice of the application to the occupiers of the property so they have a chance to challenge it.
The forms are also being amended to make it clear that the ‘quick form’ can only be used for cases brought against trespassers (which uses a different court procedure). Sheriffs will no longer therefore be able to use the ‘quick procedure’.
And so a wrong has been righted. The naughty Sheriffs have been well and truly ticked off and told not to do it again. Pats on the back all round.
The real problem
The underlying problem however remains.
Most tenants are evicted because they are not paying their rent. Now in most spheres of life, if you don’t pay for something you either don’t get it at all or you are stopped from getting it in future.
- If you don’t pay your restaurant bill you get barred from the restaurant
- If you take things from a shop without paying you get prosecuted for shoplifting
- If you don’t pay your telephone bill or the electric, you get cut off
However if a landlord is not paid his rent, he is forced to continue to house the tenant until the tenant can be evicted through the courts. The procedure, which involves serving a notice and then getting a court order, can take up to six months or more. Six months during which time the tenant is living in the landlord’s property effectively rent free.
During this time the landlord will still have to pay HIS bills – the mortgage, the insurance, and any maintenance costs.
So it seems very hard to landlords that having gone through all the procedure of eviction, and in many cases incurred heavy legal costs, they STILL have to wait a further three to ten weeks before the tenant is made to leave.
The reason why the bailiffs take such a long time is because there are not enough of them to do all the work and so delays take place. But there are the High Court Sheriffs. They are ready and able to do the work. Why can’t they do it?
It seems extraordinary that the procedures for using the Sheriffs have to be so long winded. The landlord already has an order for possession. His case has been assessed by a Judge who has found that he has the right to get his property back. In the vast majority of cases the tenant has absolutely no right to challenge this.
Surely it is not unreasonable for the landlord to expect to get his property back again in a couple of weeks, not after a further two to three-month wait?
It should not be beyond the wit of the law makers to devise a procedure which allows the case to be transferred up to the High Court promptly. Why is this not being done?
What do you think about it?
Landlords wanting guidance on eviction procedure click here.
Perhaps another example of how Landlords are not given the respect they should be given as Rent evading tenants continue to tot up many thousands of pounds of arrears whilst the Landlord continues to honour his/her financial commitments.
When will the law stand up for hard done to Landlords.
Answer – NEVER!
The courts and the government have no desire to fix this problem as long as the government is left to pick up the pieces when a tenant is eventually evicted.
The process has actually increased in level of difficulty and timescales since I started 16 years ago, so if that’s not an indication of where their intentions lay, what is?
If you’ve watched any of the bailiff programmes, or are an experienced landlord, you will already know the government advises errant tenants on how to avoid eviction, the details of which I will not clarify here as these errant tenants could be reading this also….
Why the courts and the police persist in deeming these issues with non paying, abusive and aggressive tenants a civil matter is a mystery to me. In any other walk of life / business the thieves, fraudsters and aggressors are dealt with as criminals, as will you be as the defenceless landlord if you were to actually try to defend yourself, or withhold your services as any other service provided would do in this position.
Sorry Paul, don’t hold your breath!!
Tessa, your article totally underestimates the scale of the problem. I have 2 evictions through the Central County Court using S21 Accelerated Possession in 2015 & 2016. The first took 12 months, and the second was started in June 2015 and is still awaiting completion.
Judges need to be paid on performance, and if they cannot achieve possession in the 28 – 56 days promised by the legislation then they should forgo their salary. It’s what happens in every other aspect of employment, why should judges be exempt from performance related pay?
A S21 Accelerated procedure, if properly drafted and followed up quickly, plus a landlord perhaps having some prepared material to counter a claim by a tenant of extreme hardship, should not take 12 months. Judges do not determine the speed or progress of a possession case; they do not like to unnecessarily clog up their in-trays anymore than you or I. At a seminar on problems associated with possession actions held in 2014, District Judges reported that they were seeking changes to court forms to reduce problems with claimants errors and to find ways that applications can be checked early and returned for amendment.
As has been discussed on this blog previously, the government is closing more county courts that will mean cramming the same number of cases into a fewer number of courts and given that there are only so many hours in a day that cases can come before judges – will possibly mean more, not less delay.
On top of all that there is a more recent proposal (Dec 2015) to merge all housing issues into a single judicial form joining the County Court and the First Tier Tribunals into one body.
Performance related pay? A legal dispute is not the same as producing widgets on a production line, or by pushing a commercial manager to increase profit or else. A case needs to take as long as the law provides, given the complexity, or simplicity of it.
The law does not ‘promise’ 28 or 56 days (not sure where in the legislation where 56 days is mentioned). It merely states that a judge must issue a order of a certain length after the duration of which the case may progress to the next stage if necessary to do so. Whilst some tenants may be abusing the system or wilfully refusing to pay rent many are not and are for numerous reasons, unable to do so.
It is easy to blame the judges but it is not them who are always at fault.
When I was doing possession work, if I found that a particular judge was sitting it was almost impossible for a landlord not to be granted an immediate (subject to any normal delays) order. However on one memorable day an issue went the other way. I attempted to speak to the landlord’s solicitor before going into court; he declined to do so on the basis that he did not need to to as he had only come for an order..At the start of the case he was asked if he had prepared any directions or spoken to me. He repeated that he had just come for a possession order. Unfortunately for him he had failed to take note of the case papers and that it was only for directions, not for a hearing!
Until this is fixed, it will have to be “No RGI” => person sleeps in shop doorway.
The court system has made the risk of taking any tenants without a A1 credit rating and qualify for RGI just too high.