Fixed Fee Tenant Eviction in England & Wales

About our Fixed Fee Tenant Eviction in England & Wales by Tenant Eviction Solicitors

We offer an Inexpensive, Quick and Effective Fixed Fee Tenant Eviction by Solicitors for Landlords, Letting Agents & Housing Associations

Are you looking for an inexpensive, quick and effective solution to your tenant eviction problem in England & Wales?  If so we can help, by offering our Fixed Fee Tenant Eviction service to Landlords, Letting Agents and Housing Association, anywhere in England and Wales.

Why us?

We offer inexpensive fixed fee billing for our Tenant Eviction service in all of england and wales

For a straight forward possession involving the usual one court hearing, we will act for you for a fixed fee:

The process of tenant eviction for most situations is that a notice is served telling the tenant to leave. If the tenant does not leave, a possession order must be obtained from the court. Obtaining your possession order will involve issuing proceedings, preparing for and attending a court hearing. If the tenant still doesn’t leave, bailiffs are instructed to evict them.

The Tenant Eviction Fixed Fees

A brief telephone consultation about your tenant eviction or related matter (up to 10 minutes) is Free.  

After that initial free call our Fixed Fee Tenant Eviction service costs;

  1. Tenant Eviction Notices: £65 for one notice, £85 if both section 8 and section 21 notices are used. There is no vat to add.
  2. Tenant Eviction – Full Service: £575 start to finish, from issuing your claim through preparing your case to obtaining your possession order including representation at court (1 hearing) (any court in England and Wales), all court fees and vat. That’s just £295 plus the court fee.
  3. Tenant Eviction Enforcement: : £165 including bailiff fee, there is no vat to add. If the tenants don’t leave when the possession order says they must, we can issue a warrant and the bailiffs will evict them, by force if necessary.
  4. Accelerated Possession Procedure: £450 including court fees. That’s just £170 plus the court fee.

We offer quick tenant eviction

If we have the necessary information from you and are instructed before 5 o’clock on a week day, we can often get the notice in the post and begin your tenant eviction on the day that we are instructed. We will, where possible, give you the option to have your possession order transferred to the High Court for enforcement. The procedure facilitates a very quick eviction. We can’t make any promises though, the necessary order is at the discretion of the judge and not always granted.

We provide effective Tenant Eviction

We have dealt with over 10,000 possession matters, many on behalf of banks, building societies and very large landlords. We know how to get the best from the system for you. Further more, we are a firm of solicitors and are properly qualified to carry out all aspects of your tenant eviction work.

We can go on the court record as your solicitors, the court will correspond directly with us. This means that we can manage the process of your tenant eviction for you and deal with any issues promptly and properly.

Instruct us as your tenant Eviction Solicitors because:

Unless you are very experienced, trying to carry out the work yourself will not only be time consuming but a small error can be costly.

The law takes tenant eviction very seriously. The process must be conducted diligently. Judges will rarely overlook procedural errors in the tenant eviction process. An apparently minor error can result in an adjournment or even the case being struck out so you have to start the whole process again.

Delays can be expensive if they extend the time that your very valuable asset is not earning it’s keep.

We are specialist Landlord & Tenant solicitors. Non-solicitor firms undertaking tenant eviction work are unable to go on the court record, the court will not deal with them. We are qualified to carry out your tenant eviction work. Solicitors are heavily regulated and have to comply with far ranging rules which govern client care, confidentiality, treating clients fairly and putting client’s interests first. There are also legal regulators and ombudsmen who you can complain to if you are dissatisfied with the service you have received. In addition, solicitors are required to have professional indemnity insurance which is far more comprehensive than any insurance likely to be held by a non solicitor firm. You are very well protected against anything going wrong if you instruct a solicitor.

We also use our own advocates to represent you at court, trained and supervised by ourselves. They will try to deal with any issues on the day to avoid adjournments. They have a right of audience before the court. Non solicitors cannot represent you at court.

In spite of all these advantages we are no more expensive than non-solicitor tenant eviction firms and cheaper than many. Why wouldn’t you instruct us?

Additional Assistance: We can help you with any landlord related issue such as recovering arrears from tenants or guarantors, drafting documents, defending claims against you, and even possession claims against landlords due to mortgage arrears for example.

Contact us for a Free initial telephone consultation. We will try to answer all your questions and you will be under no pressure to instruct us.

Areas covered for our Fixed Fee Tenant Eviction services:

We can supply our Fixed Fee Tenant Eviction service to Landlords, Letting Agents and Housing Association all over England and Wales including:

Tenant Eviction in Wales

We can provide tenant eviction services to Landlords, Letting Agents & Housing Associations in South Wales, South West Wales, South East Wales, Mid Wales, East Wales, West Wales and North Wales.

Tenant Eviction in England

We can provide tenant eviction services to Landlords, Letting Agents & Housing Associations in South West England, South East England including London, West Midlands, East Midlands, North West England and North East England.

Simon J Vollans & Co Solicitors

Nationwide Legal Services including:

Tenant Evictions – Property Law – Repossession – Rent Arrears Recovery – Debt Collection

Tenant Eviction and Costs for England & Wales

Re-post of an earlier message…

How much of your costs can you expect to recover when your tenant eviction claim is successful?

Firstly, legal fees are not generally recoverable unless there is a tenant eviction solicitor on the court record. Certain disbursements however may be recoverable even in the absence of an eviction solicitor, for example, the court’s issue fees or reasonable travel expenses.

The court has a wide discretion in tenant eviction matters as to the method it will use to decide who pays what to whom for costs. Costs orders in tenant eviciction claims can be either fixed costs, assessed costs or contractual costs.

Civil Procedure Rules

Fixed costs are laid down in the Civil Procedure Rules. The Civil Procedure Rules provide for fixed costs in relation to claims to evict tenants, at paragraph 45.1(2). The rules indicate, among other things, that fixed costs are for totally uncontested claims.

In reality, fixed costs are the default position for the majority of district judges hearing claims to evict tenants; even where there is a strong argument that a different basis of calculation is appropriate. It can be difficult to persuade some judges to deviate from simple fixed costs no matter how your tenant eviction claim unfolded and how vigorously it was defended.

The rates for standard tenant eviction claims amount to £69.50 to issue the claim and, generally, £57.25 when judgment is entered. In addition, the court’s issue fee of £280 (soon to be £350) and reasonable expenses should also be recoverable.

No one suggests that these costs are intended to accurately reflect the actual costs of bringing a possession claim to evict a tenant. Initially taking a landlord’s instructions regarding a problem tenant and advising how best to evict the tenant can knock a big hole in an hour. Remember that there are a number of different types of tenant eviction notice, three types of tenant eviction proceedings, and two types tenant eviction enforcement. Further, we seldom see a tenant eviction matter that does not have an additional problem or two. Common examples of additional problems, are a lack of a written tenancy agreement, tenancy deposit problems, disrepair issues, questions about who is the appropriate person to bring the claim, the list is endless.

Having established all the facts, provided appropriate advice regarding the issues and charted a course through the tenant eviction options, it is then necessary to serve the appropriate notices, draft the claim in the best way to suit the tenant eviction circumstances, file the eviction claim, deal with any defence and or evidence, and attend the hearing. Just attending the hearing, including travel and hanging around at court (there is a lot of hanging around at court) will likely take the best part of half a day. This is true of all courts, be they in London, Cardiff, Manchester, Newport, Sheffield or Swansea.  Fixed costs are nowhere near the true cost of tenant eviction proceedings.

The fixed rates have not been altered for many years, (court fees will, when the new increases come into effect, have increased by more than 350% (yes, more than 350%) since fixed costs were last reviewed for tenant eviction cases.

Fixed costs in tenant eviction claims are a mere token contribution and many might see them as a further insult to the landlord who has already lost a great deal of money because his tenant is stealing the housing benefit and / or trashing the property. The landlord has then been forced to further lose many hundreds or even thousands of pounds just waiting for the system creak to it’s leisurely conclusion. It commonly takes five or six weeks (sometimes more) for a tenant eviction claim to come before a judge. Currently, the courts in London seem generally to be the slowest for tenant eviction claims, but no courts are particularly speedy.  Eviction notices of up to three months will have gone before the eviction claim was even issued in the court and even then, the court will usually give the tenant at least two weeks (sometimes more) to vacate the property. Further, if the tenant simply ignores the order, it will take another few weeks to actually get possession with the help of the bailiffs who will actually evict the tenants.

For all these reasons, it is important to try and get a more just and realistic order for costs in tenant eviction matters where appropriate.

If you are not acting through a solicitor (non-solicitor “eviction specialists” don’t count) or you are attempting the d.i.y. route, you are not going to be entitled to costs at all, save for the court issue fee and reasonable expenses such as travel to court.

If your tenancy agreement is silent about costs and no defence was filed, the fixed costs are the appropriate order and the landlord is lumbered with them.

In any other circumstances, it will be appropriate to seek a different costs order in your tenant eviction matter.

Assessed cost would be appropriate where for example, a defence has been filed but the claim has succeeded. A court should undertake a summary (rough and ready) account of the work done, the conduct of the parties and any other factors relevant and make an order settling the liability and amount of costs.

The key point here is that you will need to refer the judge to the appropriate passage in the Civil Procedure Rules paragraph 45(1) 2 to support your submission that fixed costs are not appropriate in a defended tenant eviction claim. The landlord should also have prepared (the landlord’s solicitor will do this) a schedule of costs. The difficulty will be that many district judges default to fixed costs no matter what the circumstances. They have an over busy eviction list and are concerned to not get behind. The judge is likely to be extremely reluctant to spend time dealing with costs.

Nevertheless, the application for assessed costs should be pressed. The landlord has waited a very long time and paid an exorbitant fee to the court for his or her five minutes in front of the judge. The landlord should not be made to suffer more injustice by being deprived of their rightful costs because the court hasn’t got time to deal with them.

Whilst it is accepted that the court has discretion it is suggested that there should be a reason to exercise that discretion in such a way as to deprive a landlord of their appropriate costs. If on the other hand, the court derogates from the landlord’s entitlement for reason, for example, poor behaviour in the conduct of the claim that would be a different matter. The decision may still be challenged depending on the circumstances, however, the decision to revert to fixed costs (or lesser or no costs at all) is on a sound footing.

Contractual costs are payable when the tenancy agreement says that the landlord is entitled to his costs of enforcing breaches of the agreement.

If the tenancy agreement makes no reference to eviction costs, then fixed costs would normally be the default costs position in an undefended claim.

The court has a discretion regarding the allocation and amount of costs.

All simple enough at first glance, however, on slightly closer scrutiny, like anything connected with evicting tenants, it can be a lot more difficult than it looks. Consequently, this note will look at a situation where the landlord succeeds in a straightforward standard possession claim. The key point here is that your solicitor will need to refer the judge to the appropriate passage in the Civil Procedure Rules paragraph 45(1) 2 to support your submission that fixed costs are not appropriate in the circumstances.

Where the contract provides for the tenant to pay the landlords legal costs, it is submitted that costs that are reasonably incurred and reasonable in amount should be ordered in favour of the successful landlord.

The Civil Procedure Rules 48.3 and PD 48 s. 50 confirm the position in Gomba Holdings (UK) Ltd v Minories Finance Ltd (No 2) [1993] CH 171 that where the tenant eviction costs are payable by contract they are presumed to be reasonable. Church Commissioners for England v Ibrahim [1997] 1 EGLER 13 confirms that this approach to costs applies to landlord and tenant possession claims.

Occasionally, tenant’s representatives will raise a defence to the effect that contractual costs are a breach of the Unfair Terms in Consumer Contracts Regulations 1999.  This is wrong.  Not only is there ample authority for the position that contractual costs are perfectly reasonable in themselves, (see the previous paragraph) but the Office of Fair Trading has published specific guidance on unfair terms and conditions in tenancy agreements in Sept 2005  (Now Published by the Competition and Markets Authority).

The guidance as far as is relevant to this particular issue is as follows:

Paragraph 3.47 objects to legal costs on an “indemnity basis,” because of the potential to claim “unreasonable legal costs” However, it is suggested that this position misunderstands the principle of indemnity costs as a court is not obliged to order any costs that are unreasonable or exceed what has actually been expended.   There is no objection in the guidance to claiming costs on a contractual basis if entitled to do so by the tenancy agreement as long as those costs are reasonable.   The guidance makes clear that the objection is to Landlords claiming more than it has actually cost them.  In other words, if the costs are reasonably incurred, reasonable in amount and reflect the genuine cost to the landlord, there is no objection.

Paragraph 3.5 of the guidance states that “Landlords are entitled to recover the reasonable costs they incur in obtaining outstanding rent or other amounts due to them, but should not impose arbitrary charges….”

Paragraph 3.55 indicates that costs shouldn’t be regardless of outcome.   Paragraph 3.55 of the guidance is controversial in that contractual costs would not be payable in any event (win or lose) if the guidance were followed.  This differs from the position in mortgage arrears cases, and the authority in Church Commissioners for England v Ibrahim [1997] is clear that mortgage arrears and landlord and tenant arrears cases are to be treated in the same way as far as contractual costs are concerned. However, it would seem open to argument that if the claim was lost, the costs might be unreasonable anyway.

The contract should be reasonably clear and understandable.

So, if there is a provision for contractual costs in the agreement, the landlord is successful in his or her eviction claim, and the court has a schedule of costs, then it is submitted that the costs of the eviction should be awarded on the contractual basis as long as those costs are not unreasonably incurred or unreasonable in amount.  The argument that a contractual costs term in the agreement automatically breaches the Unfair Terms in Consumer Contracts Regulations 1999 is without basis and contrary to all authority including the Office of Fair Trading’s own guidance.  It is for the tenant to show that the particular term is unfair for a particular reason.

The court ought therefore to grant contractual costs to the successful landlord who has the benefit of a contractual costs in the tenancy agreement.

Areas in Wales covered by our Tenant Eviction Service

We provide tenant eviction services to Landlords, Letting Agents and Housing Associations in Wales to all areas of Wales including South Wales (Bridgend, RCT & Cardiff), South West Wales (Carmarthen, Llanelli & Swansea), South East Wales (Newport, Chepstow, Monmouth & Abergavenny), East Wales, West Wales, Mid Wales & North Wales (Bangor, Wrexham).

Areas in England covered by our Tenant Eviction Service

We provide tenant eviction services to Landlords, Letting Agents and Housing Associations in England to all areas of England including South West England (including Bristol, Gloucester & Swindon, Plymouth & Exeter) & South East England (including Greater London, Southampton, Portsmouth, Reading & Brighton), East Midlands & West Midlands (including Birmingham, Nottingham, Wolverhampton, Stoke, Coventry, Derby & Leicester), North West England (including Manchester & Liverpool) & North East England (including Leeds & Newcastle).

For more on Tenant Eviction please follow the link.

Tenant Eviction in Wales

Tenant Eviction in Wales

Housing (Wales) Act 2014

You might think that evicting a tenant who is causing you problems should be fairly straightforward. And some would say that it is. Much is made of the three step procedure that is: serving an eviction notice; issuing proceedings for eviction and obtaining an eviction order; and if necessary, instructing bailiffs to execute the warrant or writ of eviction.

You can even buy d.i.y. kits on the internet where a firm sells you the eviction forms, (which can be downloaded for free anyway), and possibly some tenant eviction instructions. The quality of these d.i.y. kits can be a bit hit and miss. Nevertheless, it appears cheaper so why don’t more people do it themselves?

Well, firstly, because tenant eviction is not as simple as it looks. There are several different kinds of eviction notice, three different types of eviction proceedings, and two different types of eviction enforcement.

Secondly, you are attempting to deprive a tenant of their home; judges can be exceptionally pernickety about minor details (no matter how much the tenant deserves to be evicted). It is easy to get your tenant eviction case adjourned or even thrown out.

Thirdly, we rarely see a tenant eviction case that doesn’t have an interesting twist of one sort or another. For example, there is a tenancy deposit issue or there is no written agreement or a potential counter claim, or the current tenant is not the one named on the tenancy agreement or one of countless other complications.

Fourthly, the cost of getting tenant eviction wrong can be significant. Not only might you have wasted all your fees and time, you may have to start again with notice and that could lose another three or four months rent if the tenant isn’t paying rent.

Given the size of the issue fee charged by the court for possession claims, recently increased for £100 to £280 almost unbelievably (and we understand that a further increase to £355 is on the way), what you pay to a solicitor to evict a tenant for you is not all that much. Given that many firms, this one included, will evict your tenant in return for a fixed fee, there is a strong argument in favour of saving yourself the risk and hassle when it comes to removing a problem tenant.

Incidentally, do use a proper tenant eviction solicitor, rather than a non solicitor “eviction specialist.” It’s not so much that solicitors are properly qualified (though they are of course) as that they are highly and independently regulated. There is an ombudsman scheme and solicitors have to have very extensive (and hugely expensive) insurance against things going wrong. There is always redress when something goes wrong, if it’s appropriate.

Landlord’s lives were recently made more complicated by the tenancy deposits debacle. For years, many landlords have had to pay substantial penalties to tenants (who hadn’t suffered any loss whatsoever) for infractions of the tenancy deposit requirements even though nobody (including the lawyers and the courts) understood the rules.

Well, here comes another brand new layer of perplexing complexity for those who want to evict tenants in Wales; courtesy of the Welsh Assembly. Until now, evicting a tenant in London, or Manchester, or Liverpool has been no different to a tenant eviction in Cardiff, Swansea or Newport.

Recently, a special Welsh s. 8 eviction notice was introduced, it is virtually identical and to exactly the same effect as the English s. 8 eviction notice. An apparently pointless complexity!

And now, letting a property in Wales is going to be hugely more complicated than doing so in England. There is a layer of additional cost, and all manner of new ways in which landlords can be penalised and generally bossed about. And of course, a whole new layer of bureaucracy and bureaucrats.

Don’t rely on what follows, it is just some points that stood out to us on first reading of the act. There are still things we don’t quite understand. However, just to give you feel for the new Welsh legislation, hang on to your hat and read on.

Part 1 Regulation of Private Rented Housing

The act has nine parts, dealing with Homelessness, Gypsies & Travellers, Standards in Social Housing, Housing Finance, and other related matters. This note is concerned with part 1 – Regulation of Private Rented Housing.

The new act received royal assent on 17.09.14. The Private Rented Housing provisions are expected to be brought into force over 2015 / 2016. Requirements for landlords and agents to register and be licensed are expected to be in force in the autumn of 2015.

The key points are:

  1. All landlords and their properties must be registered.  Landlords will have to pay a fee for registration and must renew every 5 years. Landlords will be obliged to keep the registration up to date with information including the identity of the landlord and identity of the licensed person appointed to manage the property;
  2. All agents and any landlords who want to manage their property must be licenced to do so.  Licensing will include training, checks on suitability (including the suitability of anyone a landlord is or has been associated with).  Licenses may be granted with conditions.  Landlords and agents will have to pay for their licences.
  3. As a condition of your licence, you agree to obey whatever codes of practice the Welsh ministers may or may not issue in the future.
  4. The fit and proper test for licensing, will ask if the landlord or anyone associated with landlord, or formerly associated with the landlord, has been convicted of offences including fraud or dishonesty, violence, firearms, drugs, sexual offences.  Further, the test will ask about issues of discrimination, harassment, or contravention of any law relating to housing in the applicant’s background.
  5. If the landlord or agent isn’t licenced, they will be unable to carry out what the act refers to as “certain kinds of lettings activities” which include arranging or conducting viewings; referencing or interviewing prospective tenants; preparing or arranging the preparation of the tenancy agreement; preparing or arranging the preparation of an inventory or schedule of condition.  Presumably, an unlicensed landlord will be unable to serve an eviction notice, or issue proceedings for tenant eviction.
  6. A landlord or agent may not even check his or her property after a tenancy has ended unless she or he is licensed.  The only step an unlicensed landlord may take is to instruct a licenced agent to inspect the property, save that it seems an unlicensed landlord may be able to publish an advert for a tenant as long as they don’t do anything else.
  7. It is an offence for a landlord to appoint or continue to instruct an unlicensed agent.
  8. There are two kinds of licence, one for landlords and one for “persons acting on behalf of landlords.”
  9. Contravention of the licencing requirements is a criminal offence.
  10. The Welsh Assembly have also created a number of enforcement powers; i.e. criminal sanctions, fixed penalty notices; rent stopping orders, rent re-payment orders, as well as borrowing from the tenancy deposit rules, the sanction of invalidating s. 21 notices during noncompliance.  The licencing authority is also empowered to demand information from landlords and agents, and of course, to revoke their licences.
  11. Local Authorities will have new enforcement powers and be able to issue fixed penalty notices for certain offences alleged to have been committed by the landlord, currently the fines are £150 or £250 depending on the offence.  The licencing authority keeps it’s fixed penalty receipts.
  12. The licensing authority has a new method of penalising a landlords, in that it may make an application to a residential property tribunal for a rent stopping order.  This means that for a specific period, no rent is payable for the property.  Any rent paid during this time must be re-paid to the tenant and is a debt recoverable through the court.
  13. The licensing authority, a housing authority and even the tenant will have another new method of penalising landlords. They may also apply for a rent repayment order. A residential property tribunal may order the return of rent for a period during which certain offences are committed.
  14. The landlord may be further penalised for non-compliance as no s. 21 notice may be given if a landlord is not registered, licenced or has appointed a licensed agent.  This doesn’t apply if the notice is served within 28 days of the landlord acquiring the property.
  15. A person authorised by the licencing authority may demand documents or other information from landlords or agents.  Not to provide the documents demanded or to destroy them is a criminal offence.
  16. It is a defence to a registration offence to have a reasonable excuse for not being registered.
  17. Exceptions to registration and licencing requirements are: that there is an a pending application;  it is within 28 days of the landlord owning the property; as long as possession proceedings are continuing if the landlord commenced proceedings within 28 days of acquiring the property; registered social landlords; mutual housing associations are exempt.
  18. The act invents some new terms.  For example “Domestic tenancies” which includes assured and assured shorthold tenancies; “Lettings Work,” which includes interviewing and referencing potential tenants; “Property Management Work,” which might be collecting rent, being a point of contact, making arrangements for repairs or maintenance, checking the condition of the property or make arrangements for the condition to be checked; or serving any notice to terminate the tenancy.

It’s interesting that there is nothing whatsoever in the act to help landlords deal with tenants who are not paying rent and / or abusing the property. These situations are extremely expensive to landlords, and our crumbling “civil justice” system takes an inordinate amount of time to deliver a solution to the landlord, via proceedings for eviction, by which time the landlord’s loss has increased exponentially.

The cost of producing and implementing this legislation, and the cost of operating it are and will be huge. It is really not justified, when taken together with the significant interference with the landlord’s property rights, to impose this burden on all Welsh landlords in order to reign in a small number of rogue landlords. Local authorities have plenty of power to deal with rogue landlords, and it would be much more effective and equitable to increase those powers if necessary.

Given the shortage of housing to rent, especially at the lower end of the market, is it wise to impose significant additional overhead, bureaucracy, and compliance risk on Welsh landlords, the vast majority of whom are perfectly decent people? There is likely to be less property available in Wales due to letting being a less attractive proposition than it is in England. Shortage of supply and additional overhead seem likely to make affordable housing in Wales something of a rarity.

It is well known and accepted amongst housing lawyers that housing law is ridiculously and unnecessary complex. As long ago as 1999, Lord Woolf expressed his view in these terms.

“. . . procedural reform can have only a limited impact on [housing law] . . . reform of the substantive law on housing could do more than anything to reduce cost and delay . . .  the main source of difficulty is the complexity of the substantive law itself. . . . The Department of the Environment should look at this as a matter of urgency.  The Law Commission should be invited to carry out a review of housing law with a view to consolidating the various statutory and other provisions in a clear and straightforward form.” (Access to Justice, Final Report, pages 197-9)

Since then, housing law has become even more complicated, not less so. This new legislation from the Welsh Assembly dramatically accelerates the scattered and diverse sources of housing law and represents, in our view, a significant deterioration in the quality housing law in Wales.

And by the way, in Wales, another significant additional piece of legislation, currently known as the Renting Homes Bill, is on its way. This one insists on a written tenancy agreement, tells you what to put in it, and then makes evicting problem tenants more difficult.

Simon Vollans LL.M. (Bristol) Barrister and Practicing Solicitor – 22.07.15.

 

Areas Covered by our Tenant Eviction in Wales service include; South Wales, South West Wales, South East Wales, West Wales, East Wales, Mid Wales & North Wales.

Landlords and Possession: Squatting is now a Crime.

 

Squatting and Possession of a Residential Property

 

Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 01.09.12.

 

The new offence will be committed where a person does all of the following:

 

  • Is in a residential building as a trespasser, having entered it as a trespasser.
  • Knows or ought to know that he or she is a trespasser.
  • Is living in the building or intends to live there for any period.

 

The act applies whether the person entered the building as a trespasser before or after the commencement of section 144. However, the offence will not be committed by anyone holding over after the end of a lease or licence (even if they leave and re-enter the building). The offence is not applicable to commercial properties.

 

Landlord’s Possession Rights Are Now a Serious Matter

 

Alex Haigh, aged 21, is the first person to be prosecuted under the new act.  He pleaded guilty and was sentenced to 12 weeks in prison.  Previously, squatting was a civil matter and the authorities had limited powers to deal with squatters.

Squatters Can Take Possession from The Landlord

 

An analysis of the law of Adverse Possession is beyond the scope of this note.  However, in a nutshell, squatters can apply to take the property as the paper owner of unregistered land if they have possessed it as a trespasser for 12 years.  The same applies to registered land where the period of adverse possession relied on ends before 13.10.03.  The principle is that there is a limit to the amount of time in which the paper owner should be able to claim back land he or she isn’t using.  The law is based on the Limitation Act 1980.  There are of course a number of qualifications, but such applications appear to be to have been frequently successful.

In the case of registered land,  the process changed after 13.10.03 with the coming into force of the Land Registration Act 2002  on 13.10.03.  The squatter only now needs to be in possession for 10 years, however, the registered owner and anyone else with sufficient interest must be given notice of the application and have a chance to object.

Although it is more difficult for a trespasser to obtain registered title to a property under the new act, it is far from impossible and furthermore, being entitled to make such an application can be a defence to an action for possession even where such application hasn’t actually been made, s. 98 Land Registration Act 2002.

The squatter’s possession must be unlawful for time to run in the squatter’s favour.  A tenant or licensee’s occupation does not give rise to the potential loss of the landlord’s property for example.  Non payment of rent does not normally amount to adverse possession, but there can be exceptions.

This is a complex and shifting area of law and advice is, in our view, essential.

The Squatting Tenant’s Possession Now Illegal

 

There is a legal maxim to the effect that courts will not enforce a cause of action which arises from illegal or immoral conduct, recently considered in Smith, R (on the application of) v The Land Registry (Peterborough Office) [2009] EWHC 328 (Admin)

If it is illegal to squat, there is therefore a question as to whether the squatter should be able to obtain title to the property, based on their illegal act.  In the light of the legal maxim referred to above and described by those who prefer Latin as ex turpi causa non oritur actio, the answer should be; absolutely not.  However, in a decision by the House of Lords, Bakewell Management Limited (Respondents) v Brandwood and ors (Appellants) [2004] UKHL 14, their Lordships appear to have qualified the maxim. 

If the landowner can lawfully grant a right claimed (an easement in Bakewell) so that it wouldn’t be criminal, then the criminality actually  involved in the absence of such a grant would not be such as to engage the principle of ex turpi causa non oritur actio.  Would it then be right to say that, because the registered or paper title owner could consent to the squatter’s possession, the maxim would not be engaged?   If yes, then the squatter would be able, in principle, to claim the property notwithstanding the illegality of the squatter’s possession.

There seems to be favour for the view that the illegality now involved in squatting would be sufficient to defeat a claim for adverse possession in spite of Bakewell.  This is because Bakewell  could be distinguished on the basis that the claim was based on prescription, which in turn is based on a fictional presumption that permission had been granted at some point in the past.  In other words, permission is presumed to have been given.  This is not the case in adverse possession.

The counter argument might be that the principle derived from Bakewell is that the criminality that is capable of being extinguished by the land owner is of a different quality to criminality per se.  It is the ability of the landowner to grant the right, rather than the nature of the particular cause of action being employed, which disengages the ex turpi causa non oritur actio maxim.

No doubt there will be a helpful judgment in the not too distant future.  Whether or not a squatter can claim possession of the Landlord’s property is an important point.

What can a Landlord do to Avoid A Tenant Claiming Adverse Possession?

 

It sounds obvious, but make sure you know what is going on at your property.  If you have a squatter, do something about it.  The obvious course of action is to begin proceedings for possession.  However, consider also the option to grant a licence or tenancy instead, which will stop time running against the landlord.  If the property in question is registered, do not fail to serve a counter notice if the squatter applies for registration.

Given the value of the asset in question, it is, in our view, vital that landlords seek advice.

As always, feedback and experience is welcomed.

Simon Vollans LL.M. (Bristol) Barrister and Solicitor – 05.11.12

This blog is for written for general interest only.  The content of this blog is not legal advice and no lawyer-client relationship is created between any persons whatsoever by the use of this blog or its contents. Please do not rely in any way on the contents of this blog.  You should consult your own lawyer for legal advice.

 

 

 

 

Charging Orders and Judgments Payable by Instalments.

Charging Orders and Judgments Payable by Instalments.

An update for landlords and letting agents pursuing arrears against a guarantor, or an evicted tenant that now has property.

This note is really aimed at those with some experience of recovering debts.  If that isn’t you, please feel free to get in touch at

http:www.sjvsolicitors.co.uk/landlord_services.co.uk or email us at info@sjvsolicitors.co.uk, we’ll be happy to help.

Where a tenant has been subject to eviction by the landlord, it may be that the landlord has a money judgment from the court.  The debt can then be enforced against the evicted tenant or a ultimately, a guarantor if there is one.

It should usually the case that as well as an order for possession, the landlord obtains an occupation charge, a money judgement including interest on the arrears, and the appropriate order for costs.

If the tenant who was subject to eviction,  now has a property or a guarantor is available, a charging order is one of a number of ways for the landlord to enforce the judgment.

It used to be that if the court ordered a judgment to be paid by instalments, the landlord had a very time consuming and somewhat uncertain path to obtaining a charging order against the tenant.  The court now has a discretion to make a charging order were the underlying judgment orders a debt to be paid by instalments, and there has been no breach of the instalment order.

Section 93 of the Tribunals Courts and Enforcement Act 2007

came into force on 01.10.12. Section 93 (2), (3) & (4) amends the Charging Order Act 1979.

Note that the court is still not obliged to make a charging order where landlord has an instalment order against the evicted tenant, it now has discretion.

The court “must” take account of the absence of default when deciding whether to make a charging order final.  The landlord cannot enforce the charging order against the evicted tenant until there has been default.  The changes are not retrospective so judgments made before 01.10.12 are not affected.

The interim charging order will continue to be made without a hearing and any issues left to be resolved at the final charging order hearing.  A possible exception is where the judge considering the interim charging order judges the amount of the debt to be too small and decides that a charging order would be disproportionate.  There is no minimum amount which makes applying for charging orders for smaller sums a bit uncertain.  The Tribunals, Courts and Enforcement Act 2007 allows a minimum figure to be set, however, at the time of writing, the figure has yet to be settled.  We recently made an application based on a debt of £600.  The application was made with fingers crossed.  Happily, the charging order was made on that occasion.

There is no need now to make an application for redetermination in order to obtain a charging order where an instalment order has been made.

It remains to be seen how courts will use their new discretion.  When the landlord or agent is before the district judge, the usual arguments should apply.  The principle points under consideration will be the size of the debt and the length of time it will take to be repaid.  If the judgment debtor must wait a long time for their money, then it is reasonable for them to have security.

The court should also be reminded that the charging order cannot be enforced whilst there are no arrears under the instalment order.  This may be somewhat academic as an application to the court must be made by the landlord in order to enforce the charging order against the tenant and experience suggests that rarely will a court be persuaded to order sale of a family home based on a charging order.

The charging order is in reality more a device to obtain security than to obtain immediate payment.  Other forms of enforcement may be pursued by the landlord against the evicted tenant simultaneously with the charging order.  Further points that might be argued in support of the application are that: the former tenant may take the debt more seriously if it is secured, the landlord may be more forbearing if they are secured and that if the landlord is denied a charging order, they may pursue less benign forms of enforcement.

As always, feedback and experience is welcomed.

Simon Vollans LL.M (Bristol) Barrister and Solicitor – 29.10.12

Welcome to the New interactive blog from SJV Solicitors.co.uk

This blog will contain lots of information about the Landlord legal services, Letting Agents legal services and Tenant legal services on offer from SJV Solicitors as well as useful information and news about Landlord Law including Property Law and Tenant Law including Tenant Eviction as well as other things of interest to Landlords, Tenants and those dealing with the law around evictions, rent arears, disputes and disrepair.

This blog will be providing regular posts and news on Landlord and Tenant legal and law issues so please follow the blog or keep coming back and hopefully you will find something of use or of interest to you.

If you want to see more about the Legal Services we can provide to Landlords, Letting Agents and Housing Associations please see our main website: http://www.sjvsolicitors.co.uk/landlord_services.html

More about SJV Solicitors – Landlord & Tenant Solicitors in England & Wales

Our principal, Simon Vollans, was formerly a barrister, having been called to the bar in 2001. Since then, Simon has personally assisted clients with more than 3,500 matters. Clients have included individuals, small and large businesses, banks, building societies and insurance companies.”

Simon provides advocacy training and consultancy to other law firms. He has been involved in high profile land disputes and has had considerable media exposure in local and national news, as well as appearances on programmes such as GMTV, Richard and Judy and Neighbours from Hell.

More recently, Simon cross qualified as a solicitor in order to found this firm.

Simon has been chair of a Housing Association and currently chairs a legal action group.

Areas covered by our Landlord & Tenant Solicitors in England & Wales

Wales

We can provide Landlord & Tenant Solicitor services, including Tenant Eviction, Rent Arrears Recovery and Debt Collection to Landlords, Letting Agents and Housing Associations in all of Wales including, South Wales, South West Wales, South East Wales, Mid Wales and North Wales.  This includes Landlord & Tenant Solicitor services, including Tenant Eviction, Rent Arrears Recovery and Debt Collection to Landlords, Letting Agents and Housing Associations in Carmarthen, Llanelli, Swansea, Neath, Portalbot, Bridgend, Vale of Glamorgan, RCT, Caerphilly, Cardiff, Newport, Cwmbran, Pontypool, Chepstow, Monmouth, Abergavenny, Mertrhyr, Brecon, Powys, Wrexham, Bangor, Rhyl etc.

England

We can provide Landlord & Tenant Solicitor services, including Tenant Eviction, Rent Arrears Recovery and Debt Collection to Landlords, Letting Agents and Housing Associations in all of England including, South West England, South East England, West Midlands, East Midlands, North West England and North East England including Landlord & Tenant Solicitor services, including Tenant Eviction, Rent Arrears Recovery and Debt Collection to Landlords, Letting Agents and Housing Associations in Bristol, Gloucester, Reading, London, Brighton, Southampton, Portsmouth, Birmingham, Derby, Leicester, Nottingham, Stoke, Manchester, Liverpool, Leeds, York, Newcastle etc.