What the court rules say
I think the nameless landlord was probably led astray by the wording of CPR81.4 which says:
(1) If a person –
(a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or
(b) disobeys a judgment or order not to do an act,
then, subject to the Debtors Acts 18692 and 18783 and to the provisions of these Rules, the judgment or order may be enforced by an order for committal.
However note that the rule says ‘may’ be enforced. This is not the same at all as saying that this will (or should) actually happen. Whether it is enforced that way or not will depend on a Judge’s decision.
And it is unthinkable that ANY Judge would make such an order against someone who has failed to move out at the end of a 14 day possession order.
Here are two reasons:
The tenant may have been told to stay put by the Local Authority and warned that if he did not do so he would lose his right to be re-housed, or
He may have grounds to appeal the possession order
Neither of which justify putting the tenant in prison.
The use of a penal notice is a very serious remedy and is not likely to be used lightly by a Judge. For example, they are sometimes used to support orders made in family proceedings restraining violent partners from going anywhere near their former spouse.
Landlords are supposed to use bailiffs
The main reason though why no Judge would EVER agree to such a thing is that there is already a procedure laid down for landlords to follow if tenants fail to move out. This is that they should apply for a bailiffs appointment in the normal way. Or alternatively apply, via the proper procedure, for this to be done by a High Court Enforcement Officer.
No doubt the reason why this landlord was unwilling to do this, is because of the delay which occurs, particularly in busy courts, between making the application and getting the bailiffs appointment. Sometimes this can be two months or more.
However, unfortunately, this is the way things are at the moment. When you let your property to a tenant, you are thereby taking on the risk that this might happen. If you don’t like it – the answer is not to rent out property. Or take a lot more care who you rent to.
What getting a penal notice would actually entail
I would also point out to any landlords who are thinking of following this path, that to get a penal notice they would need to make an application to the court, presumably on form N244 and pay the court fee which I understand would be £255.
This application would be set down for hearing, probably (as the courts are very busy) some considerable time in the future. You would then need to attend court, to explain to the Judge why you are wasting his time with such an application.
If by any chance the Judge had a brainstorm and actually agreed to make the order, the tenant would not be committed to prison immediately. You would be given a notice to serve on him, and it would only be if he failed to comply with it that he would be committed.
So landlords are strongly advised to use the quicker and cheaper bailiffs procedure!
Advice to tenants
My informant told me that the ‘penalty notice’ ploy has proved extremely effective and that most tenants moved out pretty quickly after it had been given to them.
However, landlords should remember that under the Protection From Eviction Act it is a criminal offence for a landlord to do anything which causes a tenant to give up occupation of their property unless this is done through the courts in the proper way.
Which means that tenants may have a claim for compensation for unlawful eviction.
So if this has happened to you, you may want to think about this and maybe consult solicitors.
If such a notice is served on you and you have not moved out yet – I would suggest (subject to any other legal advice you may get) that you apply to Court for a stay of execution and take the notice that the landlord has served on you along to the hearing.
I suspect the Judge will have a few things to say about it. He may even consider the landlord to be in contempt of court himself.
This is the second illegal procedure which I know about which has been used to evict tenants from properties after a possession order has been made. The first being the incorrect procedure used by many High Court Sheriffs discussed here.
These were both wrong of course, but they came about due to a serious problem in the courts – the massive delays in obtaining bailiffs appointments. Delays which can cost landlords (whose tenants are usually not paying rent) many thousands of pounds.
It can take six months or more to obtain a possession order through the courts. Where tenants are not paying rent, it is unreasonable to expect landlords to wait a further two to three months (and suffer further losses) before getting their property back.
These illegal procedures are unacceptable but they occur because of a genuine grievance which landlords have. If it is not resolved (and in the current situation I don’t see much chance of this) then we can probably expect further landlord ploys to reduce the substantial financial losses that they suffer due to court delay.
Click here to view the original article “Serving penal notices on tenants who don’t move out”
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