As a landlord, agent or solicitor, if you have used a High Court Enforcement Officer who did not follow the proper process, you could find that you’re liable for a significant claim for damages.
New streamlined procedures that make it easier for landlords to use a High Court Enforcement Officer (HCEO) to evict residential tenants came into force on 23rd August 2020.
In recent years, there has been a large increase in the use of High Court Enforcement Officers (HCEO) to evict residential tenants, which is no great surprise, as HCEOs can frequently enforce far more quickly than a County Court Bailiff (CCB) can.
How could the eviction be illegal?
At present, HCEOs can only use a standard writ of possession to evict trespassers, i.e. “persons unknown” such as squatters.
For an HCEO to evict a tenant who remains in a property after a possession date, they MUST obtain permission from the County Court under Section 42 of the County Court Act 1984 to transfer enforcement of the order for possession to the High Court.
Without this permission, any writ of possession enforced is invalid and any action taken under it will be illegal.
Are illegal evictions taking place?
In the last 18 months the High Court enforcement sector has seen a quantity of small ‘franchise’ bailiff firms, many operating under the authority of a single authorised High Court Enforcement Officer.
Some of these firms are offering guaranteed seven day evictions of residential tenants, which does not allow time to obtain court permission to transfer up.
It is our understanding that some of these firms may be applying for the writ of possession, without having previously obtained permission from the County Court to transfer up the order for possession to the High Court for enforcement, perhaps because they are not aware of this legal requirement.
If any of these firms are evicting tenants under a writ of possession but without court permission to transfer up, then those evictions will have been conducted illegally.
Exposure to claims for damages
Whilst it is understandable that every landlord wants possession of their property without the lengthy delays regularly quoted by the County Court Bailiffs, the potential cost implications for a landlord for incorrectly evicting a tenant can be huge - claims for damages might come from both the tenants, as well as the local authority that had to rehouse them in emergency accommodation.
As well as claiming for considerable damages from the landlord, the tenant may also make a claim against the bailiff company that evicted them and the authorised HCEO personally.
If you think you may be affected
If you have used the services of one of these ‘franchise’ HCEO firms, it would be prudent to now demand to see the court order allowing the HCEO to undertake the eviction.
Be advised that this is NOT the writ of possession, but is a separate standard court order. If the HCEO cannot produce this, you could be looking at a claim for damages landing on your doormat any day soon. It would also be prudent to ask the HCEO company for details of their insurers.
If you are talking to an HCEO about an eviction that has not yet taken place, do check that they are following the correct legal process before any eviction takes place.
We find that court permission is given in most cases where there is a valid reason for the transfer up – if you would like assistance in preparing your application, please call us for recommendations to support your case.