There has been a bit of a hoo ha at the courts about the sheriff’s enforcement procedure. This is where landlords transfer cases up to the High Court so they can be enforced by the sheriffs more quickly.
The problem initially came to light in a case last year, Nicholas v Secretary of State for Defence.
In this case, the defendant woke up one morning to find the Sheriffs in her house enforcing the possession order she was challenging, despite the fact that the court rules require notice to be given first before the Sheriffs can act.
It was then discovered that some Sheriffs were regularly by passing the proper procedure and getting writs issued by using a form intended just for squatter cases.
The problem sorted
For some time, the Sheriffs were in denial about this and insisted that they were doing the right thing.
Partly through the efforts of Nearly Legal the matter was referred up to the relevant authorities, who agreed that the ‘quick’ procedure was wrong, had always been wrong, and that it should not be allowed to continue. So a new practice direction has now been issued.
This makes it clear that the ONLY way sheriffs can be authorised to evict residential tenants under a County Court Possession Order is after an application has been made to the High Court, which must be dealt with by a Judge not a court official, and that the order authorising the writ will only be made if it is clear that the proper procedure has been followed.
The proper procedure includes giving notice of the application to the occupiers of the property so they have a chance to challenge it.
The forms are also being amended to make it clear that the ‘quick form’ can only be used for cases brought against trespassers (which uses a different court procedure). Sheriffs will no longer therefore be able to use the ‘quick procedure’.
And so a wrong has been righted. The naughty Sheriffs have been well and truly ticked off and told not to do it again. Pats on the back all round.
The real problem
The underlying problem however remains.
Most tenants are evicted because they are not paying their rent. Now in most spheres of life, if you don’t pay for something you either don’t get it1 at all or you are stopped from getting it in future.
- If you don’t pay your restaurant bill you get barred from the restaurant
- If take things from a shop without paying you get prosecuted for shoplifting
- If you don’t pay your telephone bill or the electric, you get cut off
However if a landlord is not paid his rent, he is forced to continue to house the tenant until the tenant can be evicted through the courts. The procedure, which involves serving a notice and then getting a court order, can take up six months or more. Six months during which time the tenant is living in the landlord’s property effectively rent free.
During this time the landlord will still have to pay HIS bills – the mortgage, the insurance, and any maintenance costs.
So it seems very hard to landlords that having gone through all the procedure of eviction, and in many cases incurred heavy legal costs, they then have to wait a further three to ten weeks before the tenant is made to leave.
The reason why the bailiffs take such a long time is because there are not enough of them to do all the work and so delays take place. But there are the High Court Sheriffs. They are ready and able to do the work. Why can’t they do it?
It seems extraordinary that the procedures for using the Sheriffs have to be so long winded. The landlord already has an order for possession. His case has been assessed by a Judge who has found that he has the right to get his property back. In the vast majority of cases the tenant has absolutely no right to challenge this.
Surely it is not unreasonable for the landlord to expect to get his property back again in a couple of weeks, not after a further two to three-month wait?
It should not be beyond the wit of the law makers to devise a procedure which allows the case to be transferred up to the High Court promptly. Why is this not being done?