Possession and Eviction - Part Three

The first article in this series considered how landlords should approach the problem of tenant default and rent arrears, beginning with negotiation and ending with the service of the statutory notices under either section 21 or section 8 of the Housing Act.  The second article described how the landlord commences court action on expiry of the notice, hopefully culminating in the court issuing a possession order requiring the tenants to leave the property.

In this third part, we consider how the possession order can be enforced if the tenants do not leave on the date required by the possession order, and how any remaining rent and other monies can be recovered once the tenant has left.

Timing

As any landlord who has applied to the court for a possession order will know, legal action is not only expensive but the legal process is also very slow.  A typical possession action can take between two and four months before the possession order is obtained, and the tenant is legally obliged to leave the property.  Using the Accelerated Possession Procedure (APP) may shorten the process by a month or so but, during this time, a landlord may be losing hundreds of pounds in rent - rent which, in many cases, may be impossible to recover from the defaulting tenant.

It is possible for knowledgeable tenants to work the system to their advantage and delay or even derail the possession process.  The Small Landlords' Association records one interesting case, where, ironically, the landlord was an ex-court judge.  The possession action against his defaulting tenant was a protracted and painful process in which the tenant failed to attend the hearing, asking for numerous adjournments, and, meanwhile, the court had lost all the paperwork in a possession action that lasted over 18 months.

There is little opportunity to speed up the process over and above using the APP mentioned previously. In one memorable case, ex-Chancellor, Norman Lamont wanted his tenant, Miss Whiplash, hurriedly and discreetly evicted from his London flat on discovering the property being used as a massage parlour. Miss Whiplash was duly evicted from the flat some weeks later but only by bringing the action in the High Court and incurring very substantial legal fees (over £20,000 in this case).

However frustrating the legal process appears, eviction without a court order is a criminal offence, so, unless the tenancy is a holiday letting or the tenant rents from a resident landlord (where the tenant has substantially reduced protection against eviction), landlords and their agents need to take care in pursuing any action that may constitute harassment or unlawful eviction.

Possession orders

A successful court action against the tenant will result in a possession order.  (which may include a money judgement if rent arrears were included in the landlord's possession claim).  Where the landlord has adopted to pursue the Accelerated Possession Procedure (APP), any rent arrears must be pursued as a separate action (normally in the Small Claims Court) - rent arrears cannot be included in an APP claim.
Once the date fixed on the possession order has passed, then, in law, any tenant remaining in the property remains a tenant until the possession order is executed. Since 2008, it is no longer possible for a landlord to try to evict the tenant in this situation on expiry of the possession order without the use of the court appointed bailiff.

Absolute or suspended

When granting the possession order, the court will usually direct that the order will be made either absolutely, or postponed or suspended. 
An absolute order for possession often takes effect after a period of time specified in the order (usually after 14 days) which gives the tenant time to find another place to live, and to leave. In certain circumstances (where the tenant suffers exceptional hardship), the order can be extended for a maximum of 6 weeks (see previous article)2.

The Court will notify the parties using form N26 giving details of the judgement.  In rent arrears cases, the tenant will be asked to complete and return the form N11R which asks the tenant's income and expenditure and allows the court to assess a suitable repayment plan.

Suspended orders

When an order for possession is suspended, it is suspended on the basis of the tenant complying with conditions, which are specified in the order.  Normally, the condition that the tenant will have to obey relates to the payment of rent arrears by specified amounts over specified periods of time (such as payment of rent arrears of £400 by instalments of £50 per month in addition to the current rent).  While the tenant complies with the conditions, the landlord cannot enforce the order.  If, however, the tenant breaches the condition, the landlord may enforce the order for possession.

Methods of enforcement

If the tenant remains in the house after the date when the landlord is entitled to possession, the landlord will need to enforce the possession order before he can get his property back.  A landlord has various options at this point.

The landlord may not forcibly evict the tenant .  Section 6(1) of the Criminal Law Act makes it a criminal offence for a person to use or threaten to use violence to secure entry into any premises (even if he or she has obtained the required possession order), provided that s/he knows that there is someone on the premises that opposes such an entry. 

The landlord, therefore, has two main choices:

  • Attempt to persuade the tenant to leave voluntarily;
  • Ask the bailiff to evict the tenants (by applying for a warrant of possession)

Peaceable Persuasion

There are many good reasons why a tenant will leave peaceably once a possession order has been obtained:

  • local authorities will often agree to rehouse the tenant once a possession order has been obtained;
  • there are very limited rights to appeal the order;
  • social stigma attached to the entry of bailiffs and physical eviction;
  • tenant's liability for extra costs if the landlord is required to apply to the bailiffs to enforce the order;
  • the threat that the bailiff can enter and seize goods belonging to the tenant when the possession order is executed.

Although the possession order does not allow the landlord to evict his tenants at this point, there are several actions that the landlord can legitimately carry out.  He can still ask the tenants to adhere to the court order and leave on the date when the court has awarded possession to the tenant, and point out the danger that the tenant will become liable for extra charges and seizure of personal effects if the tenants remain unlawfully and a bailiff needs to be instructed.

On expiry of the possession order, the status of the tenancy is somewhat precarious, at best, as the tenant will be in breach of the court order which requires the tenant to hand over possession on the specified date.  However, changes introduced in 2008 under the Housing and Regeneration Act 2008 allow the tenancy to continue and tenants will continue to gain protection from eviction until the possession order is validly executed. A landlord who attempts to evict a tenant himself at this point, or cuts off essential services could be open to prosecution under the Protection from Eviction Act 1977.

Warrant of possession

An order for possession is enforced by a warrant of possession if it is clear that the tenant is continuing to live in the property.  This authorises the county court bailiff to evict the tenant from the house.  Further, the landlord is entitled to ask the bailiff to seize the tenant's goods, by warrant of execution, to recover any money payable under the judgement.  Application is made by completing form N325, which is available from the local county court or from the Court Service website.  The landlord must certify on the form that the tenant has not left the property and, if appropriate, that any instalments due under the judgement or order have not been paid.  In other words that the tenant has breached the condition of the suspended order.

The warrant is delivered to the county court bailiff, who will visit the premises and notify the tenant of the date and time of the eviction.  This gives the tenant further time to find somewhere else to live, and usually tenants move out after this initial visit by the bailiff.  Tenants who stay in the house may apply to the court for an order staying the warrant if they want more time to move out, but this is merely delaying the inevitable.  It is also possible for tenants to apply to the court to set aside the original order for possession, as well as staying the warrant of possession.  This tactic is frustrating for landlords, but is only possible if the order for possession was made on a discretionary ground for possession. If the tenant is still in the property at the time of the eviction, the bailiff may only use such reasonable force as is necessary to evict him.  The bailiff will usually change the locks and disconnect water and utilities.

Warrants of restitution
It is not unknown for persons evicted by warrant of possession to return to the house after the eviction.  If this happens, it is not necessary to issue fresh proceedings.  Instead the landlord can apply for a warrant of restitution, which is basically another warrant of possession.  The bailiff will return to the property and evict the tenant once again.
In practice, this rarely happens if the landlord has been careful and changed the locks since this would constitute re-entry by force which, again, is a criminal offence for which the ex-tenant could be arrested.

Court Service guidance
Despite their public image as tough law enforcers, it appears that bailiffs have very few extra powers over the landlord when it comes to physically evicting an ex-tenant by force.

In a recent guidance issued by the Court Service,  bailiffs were advised that, although they could use reasonable force to break into premises, they had no legal right to use force in any degree against an occupier.  According to the Court Service, there had been several unpleasant incidents of actual violence against court bailiffs. In one case, a bailiff was quite seriously injured during an eviction.  In other cases, occupiers have obstructed access to the premises by using infants as a human barricade.

At the time, the guidance was met with howls of derision and disbelief.  Landlords began to ask how it was going to be possible to rid themselves of troublesome tenants who refused to leave.  The answer was provided in Tuohy v Bell, a case heard shortly afterwards in the Court of Appeal4. A court order had been obtained against Mr & Mrs Tuohy following a bankruptcy order, for the sale of their matrimonial home with possession to be given by 11 October 2001.  Mr Bell, the trustee in bankruptcy, tried to execute the order on 15 October but Mr & Mrs Tuohy refused to leave.  Mr Bell applied for them to be committed to prison. Mr Tuohy was committed to prison for seven days because he had failed to comply with the possession order, had impeded the bailiff, and had told the judge that he had no intention of complying with the possession order.  Although this case concerned the repossession of a property after a bankruptcy the issues would be applicable to other possession actions such as defaulting tenants.

Other enforcement methods

The 'proper' legal procedure in this country sells landlords short when it comes to genuinely bad cases of defaulting and nuisance tenants.  With long delays and the associated legal costs of taking court action, there are many good landlords who,  having gone through this experience, sell up in disgust.  Equally, there are the so-called breed of 'professional tenants' who recognise the short-comings of the legal system and blatantly and illegally exploit it.

Having explained the proper legal eviction procedure in this article, it is clear how important it is to avoid court action in the first place.  Careful tenant vetting and obtaining good information about tenants prior to granting the tenancy does help to avoid the majority of cases.  Housing benefit claimants also pose additional risks - especially since there may be no employer who can help recover an outstanding debt - and it is natural that many landlords will refuse  to accept them as tenants.

Where disaster does strike, there are often other solutions to be found (see 'Getting Creative').  Bad tenants are invariably not only cheating the landlord, but also illegally exploiting other loopholes in the system which puts them in a weak position if they are discovered and exposed.  Just as history shows us that many of the top military commanders won their battles with good tactics, landlords can sometimes rid themselves of some of their worst defaulters by good preparation and some clever footwork, and still remain within the law.

Eviction and the law

A landlord may not evict defaulting tenants even if he has correctly served the tenant with a notice requiring possession. In all cases, the landlord will require a possession order from the court. Eviction without obtaining a court order is a criminal offence5. Once the date on a possession order has passed and the tenant remains in occupation, the tenant continues to enjoy the protection of a tenancy until the possession order is exectuted. If, however, the ex-tenant returns after the possession order has been executed by the bailiff, then the tenant becomes a trespasser and the common law allows the landlord to remove the person using 'reasonable force'.  Alternatively, the bailiff can be re-instructed and evicted in the normal way.

Reasonable force
A landlord may remove a trespasser from his land but only with "reasonable force". The landlord is not permitted to use violence or threats of violence to evict the occupiers since this would be an offence under the Criminal Law Act 1977, s7. If a landlord has obtained a possession order and expects that a possession action will be resisted, then it would be advisable to ask the police to attend. 

Warrant of possession
The possession order can be enforced by a warrant of possession. The warrant directs the bailiffs to recover the property and restore it to the rightful owner. Application is made after the day specified for possession by producing at the county court office a copy of the judgement and a "Request for a Warrant of Possession" on Form N325 (as ever, a fee is payable).

Where there is an associated money judgement, the warrant also authorises the bailiff to levy execution on goods on the premises (that is - any goods belonging to the tenant).

Execution of the warrant
The Court will draw up the warrant and pass it to the bailiff. The bailiff will often make an initial visit to identify any need for intervention by welfare services and to notify the defendant of the eviction date and to evaluate the potential for violence.

An appointment will be fixed by the bailiff for the eviction, and the landlord and tenant will be notified. On the date fixed for the eviction, the landlord should meet the bailiff at the property at the appointed time. It may be prudent to arrange for a locksmith to attend so that the locks on the property can be changed once the eviction has taken place.

The bailiff is entitled by a warrant of possession to evict anyone he finds on the premises (even though that person may not be named in the proceedings) In practice, a stranger found on the premises and not named on the original possession order is often given the opportunity to delay his own eviction if it appears that s/he has a valid legal right to be in the property.

Following successful eviction of the occupants, the landlord or his agent will be asked to sign a receipt attached to the warrant acknowledging receiving back possession of the property.

Getting creative

It is widely recognised that the English legal system is notoriously inefficient when it comes to possession cases. The law does not allow tenants to be evicted without a court order and so tenants can easily stay put in a property for months before being forced to leave. In the meantime, the prudent landlord will avoid taking any measures that might constitute an offence of harrassment or illegal eviction - such as the shutting off of water supplies or changing the locks.

It is useful to recognise that there are legitimate methods to 'encourage' a defaulting tenant to leave that do not constitute harassment or illegal eviction. 

In one memorable case, our advice had been requested when a colleague suffered a bad defaulter in one of his properties. A man in his 30s had rented the property and, several months afterwards, stopped paying the rent. He stayed at and visited the property only occasionally. During his absences, there were frequent visits from other suppliers who were owed money. There were also neighbourhood rumours of drug dealings (although insufficient evidence to justify police involvement). The colleague was clearly not satisfied with advice to serve a repossession notice and the prospect of losing another three or four months' rent whilst the court process crawled along slower than a comatose snail.

Fed up with creative excuses from his tenant, he decided to get creative himself. Following the tenant away from the property, he discovered that his tenant also rented and lived at another property only a couple of miles away, was occupying both houses, but kept most of his possessions in the second property. He noted down the new address and confronted the tenant some days later explaining that there were several visitors arriving at the first house - would it not be sensible if he simply let them all know where they could trace him. A deal was struck, the defaulting tenant quickly agreed to remove his remaining possessions from the house and 'clear off' in return for the landlord 'forgetting' some important facts that would be so useful to the tenant's other creditors. As a result, the landlord also saved himself over £1500 in further arrears and court costs.

In another case, a Bristol couple moved into a flat and quickly stopped paying any rent, and refused to return any calls. The lad was a lorry-driver and his girl-friend worked in an insurance office in town. Once the rent was overdue by more than two months, possession notices were served. Again, no response. No rent was forthcoming and the rent debt mounted. The tenants clearly knew their rights, especially the one that allowed them to 'play the system' and disappear after the court order had been obtained.

Attached earnings
Applying for a court hearing did not persuade the tenants to leave, yet they left promptly afterwards upon receiving a single polite letter from the letting agent. The letter explained how the court allows a creditor to recover any debt owing by using an attachment of earnings order on their employer. The agent announced that he intended to start this process and that the girl's employer would be notified in due course, and that, given it was a joint tenancy with joint and several liability, the full rent could be recovered from her alone. The tenants rapidly vacated and disappeared but the debt was successfully recovered via the employer. Fortunately, bad cases are few and far between, but when they do arrive, they can be both very costly and time-consuming. Find out as much as you can about your tenants on their tenancy application. It will then be more difficult for them to evade their rent payments and easier for you to track them down if they do.

 

References:
1. Pemberton v Southwark LBC, [2000] 21 EG 135
2. Section 89 of the Housing Act 1980.
3. Criminal Law Act 1977, s.6
5. Protection from Eviction Act 1977
6. Pemberton v Southwark LBC, [2000] 21 EG 135
7. Criminal Law Act 1977,

 

Please note: This article was originally published in the Letting Update Journal in January 2004. All information was correct at time of publishing.