Landlords must beware of illegal evictions

When evicting tenants landlords can be tempted to take the law into their own hands. Doing so is illegal and can result in legal action against you.

trashed kitchen in property

With the courts in a backlog, and Covid 19 permission being required to beat the eviction ban, landlords can be tempted to take the law into their own hands. This is especially true in cases of anti-social behaviour where they are causing damage.

Why do we need a bailiff to enforce the Order for Possession?

CCR Order 26 r.17(1) states: “A judgment or order for the recovery of land shall be enforceable by warrant of possession”.

This is covered in CPR rule 83.26.

As only a county court bailiff can enforce a warrant from the county court this cannot be enforced by a private bailiff.

For a possession order to be enforced by a private bailiff this must come via a High Court Enforcement Officer delegating their power under a Writ of Possession. This would be after the case had been transferred up to the High Court for enforcement using section 42 of the County Courts Act.

Banning Orders

The government issued Banning Order Offences under the Housing and Planning Act 2016.

This act gives several offences that can lead to a landlord receiving one including illegal evictions and harassment. The use of this has been very sparse with less than 40 people being given one since this came in.

It is reported that there have been a number of illegal evictions during the pandemic. Reports say Illegal Evictions up over 50%.

Article in The Independent
Article in The Guardian

Valid Writs

There are reports of several writs circulating with people’s names on that are not Authorised High Court Enforcement Officers.

There should be checks in place such that when an application is made to the court to issue a writ in a High Court Enforcement Officer’s name the register is checked.

We have heard of instances where the name that has been put on is not a High Court Enforcement Officer. We have seen cases where no Officer at all is named. This makes the system flawed and allows writ fraud, which is where an invalid writ is used to enforce against a defendant. The claimant could then be liable for an illegal action against a defendant.

Conclusion

Using the transfer up to the High Court to gain permission is usually the fastest way to enforce your possession order. The process is not instant but certainly quicker than waiting for the county court bailiffs.

Ensure the company you are using is listed as Authorised on the register of High Court Enforcement Officers.

We can also help with enforcing for the rent arrears you are also due.

How to deal with exemptions to the eviction ban

As an HCEO we regularly get emails that say:

“As the tenant owes over 9 months arrears you can do this now. I have checked the law.”, or

“As the tenant is being evicted for anti-social behaviour this is exempt from the ban. Please proceed.”

These decisions are not within the powers of the HCEO and must only be made by the court.

A recent communication from the Ministry of Justice stated:

The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 (‘the regulations’) came into force on 17 November 2020. The regulations apply in England only.

The regulations prohibit attendance by any person at any dwelling house for the purposes of executing a writ or warrant of possession or of restitution, or to deliver a notice of eviction.

There are exemptions to this prohibition for the most serious circumstances. These circumstances are those where the Government feels that the competing interests of preventing harm to third parties or taking action against egregious behaviour are sufficient to outweigh the public health risks.

In order for an exemption to apply, the court must be satisfied of one or more of the following:

the claim is against trespassers who are persons unknown.
the order for possession was made wholly or partly on the grounds of anti-social behaviour, nuisance or false statements, domestic abuse in social tenancies, or substantial rent arrears equivalent to nine months’ rent that predate 23 March 2020: or
the order for possession was made wholly or partly on the grounds of death of the tenant, and the person attending the property is satisfied that the property is unoccupied.

The claimant must give the HCEO a copy of a court order clearly showing that the case is an allowed exemption.

If the claimant fails to produce an order, the HCEO should not proceed with the eviction.

HCEOs should not approach the District Judge or Master directly. If a claimant believes their writ falls within a permitted ground, they should apply. The HCEO should not approach the judge on the claimant’s behalf.

We can enforce these writs very quickly once they have the required permissions. Our advice is not to delay and get your solicitor to apply as quickly as possible.

For more information on our:

Commercial Property Eviction Service

Residential Property Eviction Service