HCEO’s What has been your experience?

Reply to the comment left by "David Carter" at "07/01/2016 - 10:36":

David,
On p10 on the LL guide to evicting tenants, N293A is stated for Steps 1,2&3. Is this now superceded?

Reply to the comment left by "David Carter" at "07/01/2016 - 10:36":

Hi David

Your posts contradict those of Nearly Legal in relation to the use of form N293A, but I am sure that you both (as well as every landlord) want some certainty as to what forms and processes need to be used in order for the process to be completely legal (and not put your landlord clients at potential risk of accusations of unlawful eviction). Although Nearly Legal does also do work for tenants, he does act on behalf of landlords as well, so perhaps you could get together with your respective evidence (guidance, caselaw, court rules, etc) and thrash out a common consensus as to what is the correct forms and procedure going forward? - Then let us all know, so that we can all proceed with total confidence.

I assume that in no circumstances could a tenancy ever be ended/rescinded such that a lapsed tenant becomes a squatter? Too much to hope. We are 100% behind the desire to make the HCEOs job effective, but we need to feel safe to use the service, which we all are uncertain of now.

Reply to the comment left by "Chris Byways" at "14/01/2016 - 22:44":

The current state of play is that the Sheriffs Office told me to talk to the High Court Enforcement Officers Association (HCEOA). I already had done that, and the HCEOA told me that a) many of their members had used N293A but b) that they had sought guidance from the Senior Master on the matter. (A Master is a lower level of High Court judge. The Senior Master is in charge of procedural matters for the High Court.) The HCEOA wouldn't comment till they had that guidance. I've also written to the Senior Master.

This might explain why David is waiting to reply.

That there are at least two judgments by High Court judges going the other way is a factor. A High Court Master must follow a decision of a full High Court Judge.

And no, on the whole, no wriggle room, a tenancy continues after a possession order up to the point of execution of a warrant. The House of Lords settled that in Knowsley v White in 2008. An exception would be if one joint tenant had given notice - that ends all the other joint tenants' tenancies.

Reply to the comment left by "Chris Byways" at "14/01/2016 - 22:44":

I don't think a tenancy can come to an end such that the tenant becomes a squatter, BUT, I believe that if a tenancy has been entered into based on a fraudulent application, then the agreement may be voidable in law, in which case the occupier would not be a "tenant" as no tenancy would exist (it would be voided), so in this very limited circumstance the occupier may be a squatter rather than a tenant.

I also believe that an occupancy “licence” is simply a “permission” to occupy, so when an “occupancy licence” is ended, then the permission to occupy is also ended. If a person is on land (or in a property) without permission, then that person is deemed to be a trespasser. In this situation they may no longer be “lawfully residing” in the property, they may be occupying it unlawfully as a trespasser.

I've found this information in law textbooks, but I've never come across any case where such principles have been argued in a residential eviction case. The legislation does not seem to rule out the arguments, it just does not specifically cover these types of situations, so it would be up to the courts to decide on the application of these legal principles to specific court cases.

Reply to the comment left by "Robert Mellors" at "14/01/2016 - 23:30":

Afraid the 'fraudulent misrepresentation' doesn't void a tenancy - it is a ground for possession, ground 17 Housing Act 1988 Sch 2.

A person occupying under a licence (and whatever you may hear, just calling it a licence will get you nowhere), would be a trespasser after a court had ordered possession, but a court order must still be obtained, as covered by the protection from eviction act, unless they are a lodger, or there is a resident landlord in the same house (or some other exceptions not of general use).

A residential eviction from a separate property let to a person or persons will almost inevitably be from a tenancy.

I think we must await the double-pinstripes to come along. . . . . .

But, idathought if an AST ended, an SPT, has been terminated by s21, a court had granted permission AND only mesne (with the silent S) profit had then been ended, it would have been an illegal squatting occupier.

http://www.landlordlawblog.co.uk/2010/09/25/mesne-profits-what-is-it/

But I know it can't be that easy.

Reply to the comment left by "Chris Byways" at "15/01/2016 - 00:04":

Hi Chris,

The key is to remember that a s.21 (or s.8) notice does not end the tenancy at all. A court order in fact does not end it either.
It is only when the order is executed by bailiffs/HCEOs that it finally end. Thus tenants are never trespassers in such scenario (and they cannot be squatters even if the tenancy has ended, e.g. because they themselves served notice).

This is crucial to understand the alleged issue here, as I understand it, with form N293A.

The bottom line really is that we need quick and simple way to execute possession orders.
Currently the CC bailiffs route is a joke and the HCEO route is un-necessarily restricted and complex (whatever the conclusion is on the N293A form). This situation simply does not make sense.

Reply to the comment left by "Robert Mellors" at "14/01/2016 - 23:30":

There have been two recent posts from Nearly Legal that have not yet appeared, I assume awaiting moderator, at 22.44 and 23.49, which I think are explaining why these ideas can't work. They are always so insightful, be interesting to read.

Aghhhhhh- Romain has just answered. Yes, do Corporates have the same problems? Oh, silly me, if they don't take HB they don't have the same problems.....

OK another vain try, The TA has a clause to the effect, you don't pay rent for two months, the Agreement is repudiated? You agree you are a squatter.