A top property lawyer says a recent decision by bailiffs not to forcibly evict anyone in Tier 2 and Tier 3 is an eviction ban by the back door.

At the end of last week the government asked bailiffs not to enforce court possession orders in areas with the highest Coronavirus restrictions. So although evictions can still proceed through the courts, bailiffs will not enforce court orders in Tier 2 and 3 areas.

Bailiff trade bodies agreed to the request made in a letter from Justice Secretary Robert Buckland who wrote: “We would request that your members should instruct the enforcement agents working under their authorisation not to enter properties that are classified as local alert level 2 (high) or 3 (very high).”

Now David Smith, partner at JMW Solicitors, has hit out at the move.

“Naturally, evictions create hardship for those being evicted, probably more so right now. However, leaving tenants with huge arrears in place also creates hardship as the debt will follow them” he says.

“The problem with the government’s approach is that it is almost certainly unlawful. It is not open to bailiffs or High Court Sheriffs to simply decline to enforce warrants and writs, even if the Lord Chancellor asks them to do so.

“They have a duty to do this. Indeed, there is a power to complain to the County Court, in the County Courts Act, about losses resulting from Bailiffs not enforcing warrants.

“This approach flies in the face of the new structures created around the re-opening of the courts for possession.

“Of course the government can prevent evictions if it wishes to. But it should do so lawfully by making regulations under the appropriate legislation and allowing Parliament to review them, not through backdoor letters to enforcement bodies. I have offered to seek judicial review on this on a ‘no win, no fee’ basis for affected landlords.”

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