The main reason tenants tend to get evicted is because of rent arrears. But once the tenant is evicted – how can you get paid your outstanding rent? The answer is, unfortunately, ‘with great difficulty’. The problem is that you can’t get blood out of a stone and if a tenant genuinely does not have the money – he can’t pay it to you.
That’s not to say that it’s impossible to recover rent arrears, but you need to have a lot of determination and staying power. Most people would rather leave it and move on with their lives. But let’s take a look at it and see when it is possible and when it is not.
So what are the tools at your disposal to enforce payment through the courts? They are all bureaucratic, long-winded, hedged around with complex rules, and potentially expensive if you use solicitors. We know that most Landlords feel the enforcement procedures are the Achilles heel of the English legal system.
We know your tenant and will do our best to guide you on the route to take following the eviction. We always try to establish what we can ‘say’ we will do, to make him/her pay to prevent you needing to actually ‘do it’! Everyone is different and most people, apart from the nightmare tenant type discussed below, will pay to prevent something from happening that they don’t want. We do our best to find out what that something is.
Where do you start?
Assuming the process is complete, and you have a possession order and the tenant has left (with or without the aid of Bailiffs) you are left out of pocket from arrears, a bill for the damage if any, and having paid court fees and possibly fees to the Bailiff. This is where the recovery begins.
The County Court Judgment (CCJ)
This is the first stage. You can’t use any of the enforcement procedures without getting a CCJ first. The order for possession will state the amount that the tenant is to pay back and if they flout this order you then have the right to make a claim through the small claims court for amounts up £3000 in rent arrears and associated costs. If you successfully achieve the judgement then this will create the CCJ. A CCJ can, however, be useful just on its own. If one day your tenant wants to get a mortgage or bank loan they will find it difficult with a CCJ registered against their name. They may pay up later to get it removed.
Bear in mind also that CCJs can be enforced for up to six years after they have been obtained and even, with leave of the court, after that. Your debtor may be penniless just now but in five years’ time, he may have a good job. If someone owes you money, it’s worth getting a CCJ and then just keeping tabs on them and waiting until they can pay. However, if you want to get paid before this, there are some court processes which you can use to help:
The Court Enforcement Procedures
The County Court Bailiffs
Here a bailiff will ‘levy execution’ on your tenants’ goods and then take them away to sell them if they don’t pay up. You get paid out of the proceeds of the sale.
This sounds good but there are several problems:
- The bailiffs can’t enter the tenant’s property unless the tenant lets him in
- He can only seize things which belong to the judgement debtor (tenant) – and not for example that flash telly on hire purchase or the posh car if it turns out to be leased
- If the goods are taken to auction, you are responsible for the storage costs
- You are also responsible for the auction costs
- Things often fetch very low prices at the types of auctions bailiffs use
- This means that you could end up substantially out of pocket if the sale price is less than the bailiff’s costs.
The High Court Sheriffs
The High Court Sheriffs can act for you if your CCJ is for more than their minimum amount and they tend to be a lot more efficient. What you really want to achieve by using the Bailiffs / Sheriffs is to get the debtor to pay up to prevent their things being taken away and sold.
You don’t want the items to be sold – as then usually everyone loses out (apart from the sheriffs/storage companies/auction houses). So, its best only to use this process if you think your debtor will pay to prevent it from happening.
Attachment of earnings order
You can only do this if your debtor has a job. But if he/she does, it is a good thing to try. However, be aware, the courts can award you very small monthly sums that debtors are ordered to pay under this process – ( it can be as low as £1 a month) so it will usually take a long time to get paid and if they leave their job you have to start all over again.
Third party payment order
This used to be called a garnishee and can occasionally work spectacularly. It is an order of the court ordering someone who owes money to the debtor to pay it to you rather than to them. It is generally used to claim money held in bank and building society accounts – so you need to know their account details (information you need to collect from prospective tenants in your information form).
However – there needs to be money in the account at the time the Third-Party Payment order is served on the bank (which is done before the tenant knows anything about it) for you to be in with a chance. If money is paid into the account the day after – it’s too late and does not get ‘caught’ by the order. So, third-party payment orders are a bit of a gamble. If you do want to use them – ask the court to let you serve the papers on the bank yourself, then you can time it for a time when you are pretty sure that money has been paid into the account.
You should only ever threaten this (and serve the notice) if your debtor will pay up to avoid this happening. Actually, making someone bankrupt is an expensive business and is unlikely to net you any money.
This is where the court converts your CCJ into a legal charge (like a mortgage) which is registered against the debtor’s property — i.e. house or flat (or other land if they have it). After this has been done, you can then make a separate application to the court for an order for sale, to recoup your money. However, most tenants won’t have any property you can use for this exercise. If they do, it will almost certainly have no equity, so if the property is sold, there will be nothing left over once the bank and building society have had their share. It is worth considering though for larger debts (if the tenant has any property) as if the price of property rises, you may one day be in with a chance.
The nightmare tenants
Every Landlord needs to be aware, there are some tenants who are almost certainly going to ‘get away with it’. These are those tenants who take care never to have any assets anywhere you can get at them through the legal process, and who don’t care if they have a bad credit record. They will be constantly moving so you can’t catch up with them, and they may change their name for good measure. Thankfully this is a small percentage, but if you are one of the very small numbers of our clients (we have needed to evict 6 times out of 400 properties) you will know it is a very painful exercise to deal with this situation.