Right of access

[Amethyst]

Re: Right of access

It was in January last year. The case was for a claim of damages for trespass (which failed)

It is very hard to claim a loss or damages just because someone has walked on your drive which is why I believe legal redress is not really an option.

Ahhh there's me wishing my life away, ta.

In an ideal world, everyone should sort things out before enforcement is considered (especially with the new fees). Unfortunately, we do not live in an ideal world and there are many cases of genuine hardship out there. Sometimes a choice between buying food, money in the electric meter or a monthly council tax instalment is a realistic scenario for people.

It is a choice faced every bloody day here, gets rather tiring, and probably faced by a large number of people on this forum.

Communication is key.

Re: Right of access

It was in January last year. The case was for a claim of damages for trespass (which failed)

It is very hard to claim a loss or damages just because someone has walked on your drive which is why I believe legal redress is not really an option.

In an ideal world, everyone should sort things out before enforcement is considered (especially with the new fees). Unfortunately, we do not live in an ideal world and there are many cases of genuine hardship out there. Sometimes a choice between buying food, money in the electric meter or a monthly council tax instalment is a realistic scenario for people.

[Amethyst]

Re: Right of access

One was argued in court a couple years back and it failed - I'm not sure as I haven't read the full judgment whether it failed as a notice of removal of implied right of access or because of the attached penalty fee, or both. The subject has been discussed over and over and over on here and other forums.

The letter was originally used for doorstepper visits from DCA's and has been adapted over time for use with Bailiffs to limited success and oddly to an insane amount of arguing about it. Often with individuals ending up attacking each other and I'd rather that did not happen here. I'm not sure why the bailiff forum causes such arguments, its an emotive subject, and a complex area, although hopefully the new regs have improved matters there, so can we keep discussions to the issues and not do the personal biting bits pls.

I don't have opinion one way or t'other as personally I prefer to advise people to sort things out before they ever got to the stage where a notice might be considered necessary.

Re: Right of access

This type of Notice may work for some doubtful that it would work in all cases mores the pity if it was soo good there would be no bailiffs as they could not gain access to any property

As previously stated, there is doubt that the notice will work at all post April 6th.

Pre April 6th, a private bailiff collecting council tax was not instructed to do so by a court (as was the case in most other types of enforcement) A liability order was simply confirming that a debtor was liable for a debt, not an instruction by the court for civil enforcement to commence.

Regulation 45 of the council tax enforcement regs stated a council may levy the appropriate amount of distress. In the absence of a warrant of execution, there is doubt that a private bailiff had any greater power than any other member of the general public.

This is why I feel that the notice was successful for stopping visits for council tax arrears. I would not have held much faith in using it for other types of enforcement.

[Crazy council]

Re: Right of access

In this posters case. The covenent of acsess on the deeds of the property will define acsess rights. Ie. You could not remove implied rights of acsess tovthe shared land without a court order.

Also. would love to see one of these argued in court just for the entertainment value

[wales01man]

Re: Right of access

This type of Notice may work for some doubtful that it would work in all cases mores the pity if it was soo good there would be no bailiffs as they could not gain access to any property

[enquirer]

Re: Right of access

For which there would appear to be no satisfactory legal redress ...

Damages and injunction. Repeated incursions could well be held to amount to Harassment, which is both a crime and a tort.

Re: Right of access

Moving forward, there is doubt from many quarters whether a notice will be effective under new legislation so the sensible advice would be to point this out to a debtor. There would of course be no harm whatsoever in writing to an enforcement agency, informing them that their implied right of access had been removed. It would only cost the price of a stamp to do this.

I think that is spot on; sending the notice will not harm at all, nor will placing it at the entrance to your property boundary if you have that ability (some face out straight onto a pavement). For DCA's it should technically work.

Going very slightly off topic, I think the whole notion of the government overriding common law using legislation is questionable anyway, and will no doubt be called into question at some stage. As I mentioned earlier, there are several areas which are, IMO, contentious and will no doubt be subject to court challenges and a series of SI's to try to resolve any teething problems. Personally I find that when SI's are added to change enacted legislation, it can become very hard to read. Thereagain, some is pretty tricky anyway, fortunately not TCGR.

Re: Right of access

I am an avid defender of the notice, as stated, it has worked for me in the past. I feel that I'm being accused of being some kind of criminal or FMOTL freak for doing something that has helped vulnerable people and also stopped a bailiff company from implementing fees that were not compliant with legislation. Bear in mind that the council had also profited in the process of obtaining the liability order, which is also not compliant with legislation. So that's the creditor AND their agent who have broken the law and I'm supposed to feel guilty for not paying fees that weren't necessary or essential?

There appears to be a sheep mentality on these boards where everyone comments on this subject without ever experiencing either success or failure.

Moving forward, there is doubt from many quarters whether a notice will be effective under new legislation so the sensible advice would be to point this out to a debtor. There would of course be no harm whatsoever in writing to an enforcement agency, informing them that their implied right of access had been removed. It would only cost the price of a stamp to do this.

[Tools]

Re: Right of access

ST, I think there has been some cross purpose/misunderstanding here.

No-one has questioned your motives and there was no need to direct your comments at Miss FM, unless I am missing something ?

Re: Right of access

Well if you would care to name & shame these websites that you've looked at, especially the ones that operate at "profit for themselves" then maybe I could give you the detailed explanation you require.

I suspect that, like 99% of the sheep who post on these boards, you know exactly what I am referring to & have nothing of substance to add yourself.

Still as long as you think you're doing your bit eh?

Re: Right of access

I used the notice on several occasions under the old regulations.

Ironically, the man that you are all obsessed with is also of the opinion that the notice will not work as long as the new regs are followed.

My response was aimed at MissFM who was spouting all the same old tiresome templates regarding the notice.

I would also like to point out that contrary to Miss FM's claims, I also offer free, impartial advice at no profit to myself

ST - I hope your credentials are not in question. That's not how I read it and I'm happy to clarify you make no profit from giving advice here or anywhere else on the internet as far as I know.

As for other sites, it is up to them what they advise and whether or not they charge for that advice. While I can't speak definitively for LB, my view is LB is LB and does what it does, just as other sites do what they do. Pitching one against another is pointless and unhelpful.

Re: Right of access

Was that pre or post the new regulations?

The situation post the new regulations is yet to be tested in court as far as I know. I do know the views of the MOJ and of John Kruse (The Starving Taxpayer will already have this, or similar, elsewhere):

According to the Ministry of Justice from 6th April a householder’s right to refuse or revoke permission to enter their premises will be overridden by Sch.12 para.14(1) which states as follows:

“An enforcement agent may enter relevant premises to search for and take control of goods.”

John Kruse’s view on the above clause is that :

“It is not immediately apparent whether or not this provision does anymore than confirm the existing right of a bailiff holding a lawful warrant to enter property”

and that:

“Whether the courts will agree that the common law on trespass has swept away in so cursory a manner remains to be seen”

Under the new regulations an enforcement agent is not rendered a trespasser by any error he has made- in other words, all wrongful levies in future will be ‘irregular’ rather than ‘illegal’ (in the present terminology).

A bailiff breaching the provisions of the Act will therefore not have trespassed. Trespass takes three forms- to land, to goods and to persons (assault and battery).

It would seem that claims for trespass- whether against land by forcible entry, by violence against the debtor or by wrongful seizure or removal of goods- will no longer be possible in respect of the taking into control of goods.

It is a highly controversial area, hence me trying to report impartially on things as they stand.

My personal opinion is that there will need to be court cases to set case law, and no doubt SI's will be brought in to stop the plug hole leaking. Detailed elements of the new regulations are questionable, and certainly subject to challenge if someone chooses to do so.

As far as FMOTL goes, again the waters are muddied IMO, as there are occasions where the common law right can be revoked and 'the deployment' of this notice can help. According to the new regs, that right no longer applies to bailiffs, if indeed it ever did.

Re: Right of access

Please would you enlarge on this, Enquirer?

Also, what are the implications where there is NO "implied right of access" in the first place?

I will enlarge on this:

The quote comes from a template used on CAG for DCA's.

Many bailiffs like to tell all & sundry that NOROIROA stems from FMOTL. They conveniently forget that CAG urge people to deploy the notice and also Nottingham City Council have deployed the notice. So much for it being "FMOTL"

Another favoured claim from bailiffs is that it is "put up by people who have no intention of paying" This ridiculous statement is also way off the mark. it is very often used by vulnerable people who have been let down by their local authorities & the notice is a last resort.

Nobody could be "charged with contempt of court" for using a notice.

You talk about people "going about their lawful business"

Pre April 6th, a private bailiff had no more powers than any other member of the general public. Debt collecting for the council for council tax arrears on the strength of a liability order did not give a bailiff anywhere near the powers that an agent working on behalf of the courts had. This scenario MAY have changed post April 6th. What is still clear is that an EA may not assume implied right of access to a debtors home and may only enter upon invite.

Regarding the tort of "trespass, it used to be an offence, hence the "trespassers will be prosecuted" signs. Nowadays, an offence will only kick in at the aggravated trespass stage. With a notice displayed, it is far more easier for an offence of aggravated trespass to occur.

Regarding "no satisfactory legal redress", I would probably agree, however a bailiff collecting on the strength of a liability order would invalidate any subsequent fees.

I speak from first hand experience btw so far from "delaying the inevitable", I stopped civil enforcement there and then.

[MissFM]

Re: Right of access

As to locations with no implied right of access (any recognised postal address would be held to extend same), I would have thought that simple trespass would apply from the outset.

For which there would appear to be no satisfactory legal redress.....

Would a bailiff give a stuff we see some taking third party goods and cars despite strong evidence

Quite.