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Proceeds of crime

Receiver not entitled to possession against protected tenants

B v N
[2009] EWHC 2884 (Admin)

Summary

A receiver appointed under the Criminal Justice Act 1988 could only obtain possession against assured shorthold tenants by following the procedure set down by the Housing Act 1988. The power provided in the CJA did not override the tenant’s statutory or contractual protection.

Facts

A had been the subject of a restraint order preventing her from dealing with her property. In breach, she let the property to T who had no knowledge of the order. T lived at the property with his family as an assured shorthold tenant.

Section 80 (4) of the Criminal Justice Act 1988 provides that "The court may order any person having possession of realisable property to give possession of it to any such receiver." A’s receiver sought possession pursuant to section 80(4). However T was not given notice of that application. An order was made directing that all persons having possession of A’s realisable property to deliver it up to the receiver and gave the receiver the power to take possession of the property. The receiver subsequently applied, without notice to T, for a writ of possession. T objected to the writ.

Decision

As T was residing in the property as his home, his article 8 rights were engaged. Further notice should have been given to T both of the application for possession and for the writ of possession (SCR 115 Rule 7(1) and RSC O.45r3). "Any person" in s80 (4) did not include tenants protected by contract and/or statute and therefore the Criminal Justice Act "does not trump" the Housing Act 1988. Before the receiver was entitled to possession against A, they would have to terminate the tenancy according to the Housing Act 1988; i.e. by service of a section 21 notice and then by court order and possession.

Citation

The judge at para 28:
    "Much clearer language would be required to expropriate a property right and to do so without compensation. The genera] scheme of the confiscation legislation is to realise the criminal's assets, but not to infringe the property rights, procedural and/or substantive, of other parties who may themselves be entirely innocent."



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