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Using a Bailiff – Property Litigation Update

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Bailiffs are a vital part of property law as they can be appointed by commercial landlords to collect unpaid rent and/or seize goods in lieu of unpaid rent (known as distress) and may also be used to recover possession of commercial premises by means of eviction (known as forfeiture). Using bailiffs can be a speedy and low cost method. However there can be pitfalls as the law governing bailiffs is complex and dates back many centuries.

Do you have the legal power to use a bailiff?

It is essential that the right of a landlord to use a bailiff to recover arrears and/or premises is exercised in accordance with the terms of the lease. On occasions, using a bailiff may act as a "waiver" and may mean that powerful court action cannot be taken in the future. Bailiffs will not advise on legal documentation or on whether other options may be more appropriate.For that reason, it is good practice to take legal advice before instructing a bailiff. Our property litigation specialists are able to advise on whether a bailiff can be instructed in any given situation or whether other means of enforcement may be more appropriate.

How do I instruct a bailiff?

At hlw Keeble Hawson we have expertise in instructing bailiffs to recover arrears and/or possession of premises from tenants or trespassers. It is essential to use a reputable bailiff agency. The unaware may easily fall prey to instructing rogue operators who could damage the landlord’s prospect of recovering arrears and/or premises. We have good working relationships with reputable local and national bailiff agencies and regularly provide clients with advice on when and how to use a bailiff.

What if I am confronted by a bailiff?

If you are confronted by a bailiff demanding entry to your property or attempting to seize cash or goods it is important to seek legal advice immediately. Taking immediate advice will minimise the risk of your rights being prejudiced.

How and when is the law likely to change?

The Government has announced plans to carry out a major overhaul of the bailiff industry. A consultation will run from 17 February 2012 to 14 May 2012 which has set out proposals to eradicate bad practices. The response paper is scheduled for publication in October 2012 and is expected to form the basis of new legislation governing the bailiff industry.

hlw Keeble Hawson will provide an update and a detailed analysis once the response paper has been published.

The Government’s initial proposals to combat perceived bad practices carried out by a minority of bailiffs include:

  1. Clarity of the circumstances in which bailiffs may use "reasonable force";
  2. Creation of a national complaints service;
  3. Establishment of a certification process to stamp out unsuitable operators;
  4. Confirmation of the circumstances and manner in which bailiffs can enter premises;
  5. Introduction of a fee structure; and
  6. Verification of what items can and cannot be taken from a residential dwelling.

Do you want more information?

For advice or assistance on any of the issues outlined above, please contact Stacey Evans, Chartered Legal Executive in the Litigation and Dispute Resolution team, on 0113 3993481.

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