HCEO’s What has been your experience?

Reply to the comment left by "Chris Byways" at "15/01/2016 - 07:55":

You won't be able to 'write away' statutory rights.

You can stick whatever you like in a contract, even sign it thrice but ultimately it's the law/Courts that will decide.

As an extreme example, a defence to murder could not be that the victim agreed to it by signing a contract.

Reply to the comment left by "Nearly Legal" at "14/01/2016 - 23:44":

Hi Nearly Legal

I know there is provision for "fraudulent misrepresentation" to be a ground for possession in housing law, but this appears to me to be a case where there is a possible conflict between different laws, in as much as tenancy law stems from contract law, and in contract law there is the principle of voidable contracts (under certain circumstances). Connected to this is the fundamental conditions of the formation of the contract. According to Professor of Law T.A. Downes in the Textbook of Contract (5th edition), for a contract (and a tenancy is a contract), "Rescission is available for all classes of misrepresentation. The effect of misrepresentation is to make a contract voidable, not void, and an action for rescission is an action to to have the contract set aside, restoring the parties to the position they were in before the contract was made." - As already stated, I have never seen this particular point being argued in any residential property possession case, so it would be up to the court to interpret and apply these fundamental principles in practice.

In relation to (genuine) licence agreements, yes, the PEA 1977 still applies, so a court order for possession is required, BUT it does appear that you are in agreement that in such limited circumstances then the occupier would be a squatter, and consequently the HCEO's could use form N293A.

Thank you for also pointing out that occupiers are squatters if they are remaining in occupation after a joint tenancy has ended (e.g. by one of the joint tenants giving notice). Presumably form N293A is okay to use in this circumstance.

Reply to the comment left by "Robert Mellors" at "15/01/2016 - 09:36":

Robert

Statute overrides common law. HA 1988 s.5 applies. So rescission by common law action by the landlord is not available if the tenancy has started.

As far as licencees go, then after the date in a possession order, they are arguably trespassers, yes. But you can't simply class any agreement as a licence. It will be a tenancy regardless of what you call it if the conditions are met.

If a joint tenancy is ended by a notice to quit by one of the joint tenants (meeting all the formalities), then the tenancy is ended. This is not an e.g., it is the only situation in which that would apply.

Chris - not sure what you mean about the mesne profits thing, but as Romain said, an assured tenancy or AST continues until the actual eviction, so no. And this is regardless of whatever you have put in the contract.

Corporate tenancies are not ASTs. But then, neither can a corporate body be an occupier, so can't be a trespasser in occupation. Ending a corporate let may mean that the sub-tenant becomes your direct tenant, if they had an AST from the corporate body.

This has nothing to do with HB at all. It applies to any assured shorthold tenancy.

Romain - there is a current review of the whole court structure. One of the initial proposals is to streamline enforcement processes, including possibly unifying High Court and County Court enforcement, so this may come about.

I expect a few rogue landlords will weigh up

Fine? Rent lost? Fine? Rent lost? ....... FINE.@ £2200 it is worth the risk, if bailiffs take 6m and rent is £1000/m, no contest!

http://www.birminghammail.co.uk/news/midlands-news/family-nine-illegally-evicted-home-10731513

Doesn't explain how reasonable or unreasonable the reasons were.

Glad to see Brum CC are here to help BOTH sides. Like getting bailiffs there pronto?

And another one fined more, but he had been warned not to.
http://www.birminghammail.co.uk/news/midlands-news/dumped-front-garden-landlord-everything-10597895

Reply to the comment left by "Nearly Legal" at "07/01/2016 - 11:58":

Afternoon Giles,

Firstly, apologies for my delayed reply. This has been due to being struck down by the dreaded post-Christmas man flu and being out of the office for the last two days.

Anyway, cutting to the main point you raised, our opinion is that using form N293A to obtain the writ of possession is not an abuse of process.

The practice of using form N293A (the only option currently available) was adopted by HCEOs in accordance with the provisions to transfer matters from the County Court to the High Court (for enforcement) under section 42 of the County Courts Act 1984. This practice has been endorsed, without demur, by the Courts for over a decade.

We would therefore argue that the transfer of an order for possession in relation to residential eviction of tenants is legal and common.

We are also advised that in order to have the situation fully clarified, the High Court Enforcement Officers Association have already sought guidance from the Senior Master of the High Court and we understand a response is due shortly.

Personally, I firmly believe that the current methods used by The Sheriffs Office and many other HCEOs are not an abuse of process or illegal and are correct and lawful at this time.

However, we eagerly await the Senior Master’s guidance and will of course be able comment further once that is received.

In terms of HCEOs being able to offer writs 'within a one day' or a guaranteed 7 day eviction we wholeheartedly agree with your concerns.

We have written articles ourselves on these new and inexperienced HCEO companies that appeared to be bypassing the requirement of leave under Section 42 of the County Court Act 1984 to transfer a County Court order to the High Court for enforcement.

This in itself left landlords and the actual HCEO (who I believe wasn't actively working within the business) open to potential cases for damages from their former tenants as these evictions would have been enforced illegally.

Kind regards, David

Reply to the comment left by "David Carter" at "15/01/2016 - 15:23":

Hi David,

Thanks for this - but we may be addressing slightly different things. Absolutely, I agree it is possible to transfer up by an application to the County Court under s.42. The process for that is clear and there is the MoJ guidance, with which I have no issue at all. It is possible and completely legal to transfer up to enforce a possession order against tenants, no dispute at all.

But there is nothing in that Guidance or in the s.42 procedure that says an N293A must be used subsequently to apply for a writ.

And it is the subsequent application for a writ that is the issue. That form N293A is the only form issued by HMCTS is neither here nor there - the N293A would not be the right form to apply for a Writ of Delivery either. So, an application for a writ does not have to be in form N293A.

The question of an abuse of process really comes down to whether the applications for a writ in tenant cases complied with the requirements of CPR 83.13.(2) - was the High Court's permission obtained? - that does not mean rubber stamping by the court office, it means permission from a Judge. As in Nicholas v Secretary of State for Defence - a High Court case - not complying with that requirement is itself enough to have the writ set aside.

Using a form which states that it is a Writ against trespassers, so that the Court's permission is not required, would be an abuse, regardless of whether it was intended as such or not.

We will see what the Senior Master's guidance says. But if what you are relying on is that there was only the one form, I don't think that gets very far.

Reply to the comment left by "David Carter" at "15/01/2016 - 15:23":

Hi David

Perhaps slight cross purposes here. I completely agree that possession orders against tenants can be transferred up by an application under section 42, and the MoJ guidance on that is fine. No argument there at all.

But neither s.42 nor the MoJ guidance say anything about then using N293A to apply for a writ. There are other ways of applying for a writ apart from N293A. For example that form would be no good for either a writ of delivery or a writ of restitution. There aren't specific forms for every kind of application. I'm not sure that 'there isn't another form for a writ of possession against tenants' will get you very far.

The issue of abuse of process comes down to CPR 83.13(2) For the issue of a writ of possession against tenants, the court's permission is required. That means permission from a High Court Judge, not stamping by the court office.

Using a form which certifies it is for a writ against trespassers, when it is not, and that therefore the Court's permission is not required, when it is, would be an abuse of process regardless of whether it was intended to be, or was done in good faith. It doesn't matter whether you meant to get round the permission requirement or you didn't and genuinely thought it was the right thing to do.

We will see what the Senior Master's guidance says when it comes. But might I suggest being cautious in the meantime, given that there is clear notice of the potential issues and the potential risk to client landlords.

Reply to the comment left by "David Carter" at "15/01/2016 - 15:23":

PS - the form would be an N244 - standard application form.

David,

I had a couple of genuine questions after last night's "Nightmare Tenants, Slum Landlords" on C5, Freesat 105 15.00hrs. S1 Ep4

Terry Sarkin was owed £8k from the attractive heavyweight serial LL abuser Sophia.

He had a Possession Order, but went in apparently only him and the lock smith, but The Sheriff's Office Writ was posted in the window apparently by the locksmith. Was he an HCEO or a locksmith? He was in fear of Sophia returning, which she did as he was about to leave, she said she was not leaving the house etc, but had white van men ready, so presumably she knew she was going then, but still Terry alone had to empty the house as he was not letting her put foot inside.

Then the same heavyweight S ran up a £4K rent debt with the attractive lady, Lesley.

She had got an Order for possession for the previous day, and she knocked and cautiously entered not knowing who/what she would find. Most things had gone, but enough left to raise doubt, IE a soiled mattress etc leaning against a wall. Had Sophia still been there, or returned in the middle, it could seem to be an eviction by the landlord, thus not lawful?

This gave the impression to viewers once the LL has the eviction notice, from the court, they can finish the job off themselves. But this isn't right surely? Yet had she not entered, Lesley would not know if S had gone or not.

I'm sure we all hope she is featured on Landlordreferencing.

Then later 'Rogue Landlord Officer', Ben Reeve Lewis went in against an HMO LL in Lewisham.

Reply to the comment left by "Chris Byways" at "17/01/2016 - 11:01":

Dear Chris, I've been unable to find episode 4 as only episode 5 is available on Sky.

Are you sure it was a writ from The Sheriffs Office?

We have never worked with Channel 5 but a new HCEO company called DCBL do and feature in the show 'Can't Pay We'll Take It Away'. Maybe it was them?

Kind regards, David.