By Deborah Brown, Walker Morris LLP
The Beyond Section 21 report, published by The Lettings Industry Council (TLIC) highlights the need for an overhaul of the County Court Bailiff process. Reform of this part of the process should be the least controversial aspect of speeding up possession claims.
A County Court Bailiff eviction can only take place once the Court has had the opportunity to consider both the landlord and the tenant's side, including consideration of any defence submitted by the tenant. A large proportion of possession orders are made on discretionary grounds and tenants have multiple opportunities to seek a suspension of enforcement before a Bailiff attends to carry out an eviction. In housing possession matters, tenants also have access to publicly funded legal advice and representation.
To put timeframes into context, by the time a warrant for possession is applied for to instruct a bailiff, it is likely that at the very least 4-5 months of rent arrears will have already accrued, along with the landlord's legal costs. For a section 21 matter (where a landlord may for example be seeking possession in order to sell the subject property), a similar timeframe of 4-5 months will also have passed by this stage.
The issue of a bailiff warrant means due process has already been followed and the Court has decided that a landlord is lawfully entitled to recover the property.
Why is the PRS asking for bailiff reform if the Courts have agreed the landlord is entitled to possession?
The simple reason is that it takes too much time.
The time between requesting a possession order to be enforced by the Court and the enforcement taking place is too long. Meanwhile, the months continue to pass and the landlord can be affected in multiple ways, for example: a sale of the property is lost; a mortgage lender proceeding with repossession against the landlord; a landlord is left without income to support their family or the property suffers from further damage by the tenant.
The significant lack of parity regarding waiting times when dealing with different Courts also needs addressing in order to create a fairer system for all. This is especially important considering the areas with longest waiting times are typically ones where the Government need the most support from private landlords, in order to fulfil housing needs where social housing is in short supply.
Solutions to explore
The Beyond Section 21 report highlights various options to consider, some of which are easier to achieve than others. In any event, it is likely a more centralised management approach will be required to remove the 'postcode lottery' process currently faced by court users seeking and enforcing possession orders.
Can the use of bailiff pools be extended?
There may be merit to extending the use of 'bailiff pools' rather than assigning bailiffs to specific courts. This may allow courts to distribute appointments more efficiently. Quieter courts sharing their staff would assist to reduce times in other areas, thus a fairer more even approach to the delivery of the legal process.
Could the Bailiff work be outsourced by the Court?
High Court Enforcement Officers (HCEOs) would be the obvious solution to fulfil this role, by extending their licence to cover County Court work. They already carry out residential repossessions and are suitably insured and trained. This would require contractual arrangements between the HMCTS and the HCEO firms and commercially viable fees agreed. But, this offers a 'readymade' outsourcing option to increase staffing and reduce waiting times as and when required.
What about simplifying the process for the transfer to High Court for enforcement?
The current transfer process requires a separate court application to be made. Many landlords are not aware of its existence or the correct use of the procedure or the timings involved in its use. Another hurdle is the County Courts' position on this process. Many applications to transfer are refused by Judges, leaving the landlord to join the long queue for the County Court Bailiff.
Repealing section 42 of the County Courts Act 1984 would be the obvious solution, as would result in no permission to transfer being required. Or if that option is not attractive to the Government, a simple tick box could be added to the Claim for Possession forms, to allow the transfer request to be made at the outset, with the assumption that it will be automatically granted.
HCEOs are required to give a tenant 14 days written notice of an eviction, this timeframe is aligned with the County Court process, so the impact upon the tenant would be no worse than if a County Court Bailiff was used.
How about increasing the choice of service providers?
As noted above, the High Court already authorise the use of licenced enforcement officers who are not employed by the Court. The County Court could do the same. The landlord would then have the option to use the County Court Bailiff Service or privately instruct a bailiff who is licenced by the Court.
There is no justifiable reason to oppose Bailiff reform
This is one area of reform that should not be resisted because of the perceived impact on tenants' rights. Once due process is complete and the Court has agreed that possession should be given, is it unjust that Government budget issues and lack of County Court resources should force many landlords into financial difficulties.
In the context of abolishing section 21, why would reform be needed regarding the bailiff process?
As the 'Beyond Section 21' report discusses, there is likely to be a significant increase in possession proceedings, resulting in more warrants being issued and an increased need for enforcement services.
Even with section 21 currently in place, the County Court Bailiff process timeframe is excessive and unfair. Adding more pressure to this already failing system, could push it to breaking point.