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Enforcing possession orders - how not to do it

29 Sep 2015

The London Borough of Southwark came under heavy fire from the High Court in October 2014 following an eviction of one of it’s secure tenants. London Borough of Southwark -v- AA [2014] EWHC 500 (QB) highlights some keys issues when enforcing possession orders and dealing with evictions, and serves as a good reminder to private and social landlords of the rules and best practise when dealing with such cases.

Background

Possession proceedings were commenced due to rent arrears and a postponed possession order was obtained by Southwark on 13 November 2006. Due to continuing arrears, an application was made to fix the date for possession and the order was made on 1 July 2008. A warrant for possession was issued on 26 February 2013 and there followed a serious of applications to suspend the warrant for possession. AA was subsequently evicted on 23 April 2013.

AA contended in these proceedings that he had been unlawfully evicted by Southwark and claimed damages for the unlawful destruction of his belongings in the sum of at least £2.4m.

Findings of the Court

  1. The Court agreed that the eviction had been unlawful and an abuse of process. A possession order cannot be enforced by a warrant after expiry of 6 years from the date of the order, without permission of the Court. The Court made it clear that time starts to run for these purposes from the date of the possession order, or in this case the postponed possession order and not the subsequent order fixing the date for possession.
  2. The Court found that various officers from Southwark had conspired to evict AA by unlawful means and to seize and destroy his possessions by unlawful means, and this conspiracy was subsequently covered up.
  3. The officers had exercised their powers as public officers for an improper motive, with the intention of harming AA by evicting him and arranging for his possessions to be seized and destroyed.
  4. AA was entitled to substantial damages for breach of duty and various torts and for equitable remuneration for lost work stored on hard drives, discs, memory sticks, and lost photography, as well as a remedy for the loss of his tenancy.

During the course of the trial, the Court heard of the failings in conduct of the various officers from Southwark in dealing with the eviction and in particular their failure to follow standard procedures, including omissions to vital passages from standard letters including the date of eviction, the date of the possession order and what action AA was required to take. The entire contents of AA’s flat including his passport, lap tops, papers, personal belongings and furniture were removed from the flat by the officers from Southwark and taken to and destroyed in a refuse disposal facility.

Lessons to be learned

Quite apart from the damning findings of the conduct of the various officers, there are a number of important lessons to be taken from the case:

  • A warrant for possession cannot be issued in respect of a possession order that is over 6 years old without the permission of the Court. An application can be made for permission in appropriate circumstances however each case will need to be considered on its merits and advice sought. In most cases, it will be appropriate to serve a new notice and bring fresh proceedings.
  • The correct procedure must be followed in relation to tenant’s belongings. For Local Authorities, this is section 41 of the Local Government (Miscellaneous Provisions) Act 1982, which requires the Council to give one month’s notice to the tenant that the belongings must be collected, failing which the items vest in the Council and it may dispose of them as it sees fit. For other landlords, the requirements are prescribed by the Torts (Interference with Goods) Act 1977 and the common law of bailment, which provides that the landlord becomes a ‘bailee’ of the items and has a duty to safeguard them. The landlord can serve notice requiring the tenant to collect the goods within a reasonable period of time, after which they may be disposed of and the landlord is accountable to the tenant for any proceeds of sale.
  • The importance of following internal procedures and practises cannot be stressed enough. Time and experience is invested in putting together procedures, policies and standard documentation, often with the benefit of legal advice, and the failure of the officers at Southwark to follow standard procedures and their amending of standard documents lead to its downfall and the Judge’s finding of a conspiracy and abuse of process.

The case is unusual but a timely reminder of the “dos and don’ts” when dealing with an eviction. The remedies and damages to be awarded to AA were settled out of Court, but he is likely to have received a substantial pay-out, in addition to the legal costs spent by Southwark in dealing with the case. It is therefore imperative that evictions are dealt with correctly in order to avoid a significant penalty if the eviction is challenged in Court, and heavy criticism by the Court.

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