Removal of Implied Right of Access
- Q?Removal of Implied Right of Access
REMOVAL OF IMPLIED RIGHT OF ACCESS
In recent times we have received a number of cases where a “Notice of Removal of Implied Right of Access” has been displayed by defendants.
Reliance upon the internet can be fraught with danger. For those of you who have not seen or do not know of such notices they originate with Freeman on the Land or Sovereign Citizen movements. It has been suggested (wrongly) that the occupier can make a claim of trespass against the enforcement agents or their company. This is not something we would recommend.
In Thornton v Rossendales 2013 Mr Thornton did just that following a visit by a certificated bailiff (now called enforcement agent) after Mr Thornton had sent a letter by registered post to Rossendales invoking his Removal of Implied Right of Access. In the letter he said that any attempt to enter onto his property would be deemed trespass and that a criminal complaint would be made against any violation and that a penalty of £750 would be charged. At the hearing Rossendales as the defendant rebuffed the claims made stating that it had authorisation from the local authority to execute distress (a copy of which was made available at the hearing), but that Regulation 45(1) Council Tax (Administration and Enforcement) Regulations 1992 (S.I.1992.613) provides that:
“Where a liability order has been made, the Billing Authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made”
Furthermore, Regulation 45(7) says that:
“A distress shall not be deemed unlawful on account of any defect or want of form in the liability order, and no person making a distress shall be deemed a trespasser on that account”
“no person making a distress shall be deemed a trespasser from the beginning on account of any subsequent irregularity in making the distress, but a person sustaining special damage by reason of the subsequent irregularity may recover full satisfaction for the special damage (and no more) by proceedings in the trespass or otherwise”.
Judge Pugh questioned the legality of the claimant’s case. He said that while he had no reason to query the use of Notice of Removal of Implied Right of Access, he felt that its relevance in this particular matter was left wanting, as withdrawing consent to the right of access to the property did not override the legal right of the bailiff.
He agreed with Rossendale’s that the bailiffs had been granted powers by statute contained within the Council Tax (Administration and Enforcement) Regulations 1992 to levy distress and that as per Regulation 45(7) they could not be considered a trespasser
The Judge went on to say that as a liability order had already been granted by the magistrates court, he had no reason to “look behind” the validity of the application and did not intend to question this further, accepting that any appeal relating to the making of the order should have been made to the magistrates court after the original liability order hearing.
Furthermore, the Judge said that despite what the claimant had written in the notice regarding contractual terms and conditions, it was not a contract as there was no consideration from either party involved. The claimant could not simply rely on Rossendale’s accepting the terms of the notice purely because they carried on with the lawful act of levying distress.
The Judge felt that the claimant was confusing the law of contract with the tort of trespass – which was a different element of law altogether. It was stated by Judge Pugh that it is a common misconception that trespassers can be automatically prosecuted when in fact they can. Instead, an aggrieved individual would have to demonstrate that there had been a loss as a result of damages caused by the defendant’s alleged trespass.
Despite remonstrations from the claimant, the Judge dismissed any reference to the case Davis v Lisle (1936) mentioned in the claimants application, saying that it did not bear any direct relevance to the matter before him between the claimant and Rossendale’s.
The question was put to the claimant; where was the loss in this particular instance? The claimant could not provide any evidence to support his claim
As the Rossendale’s Bailiff had merely visited the property and left a notice confirming his attendance, any trespass would have been negligible and damages nominal.
In his final summary, the Judge made it clear to the claimant that he had been ill-advised in making his claim to the county court to try to prevent the bailiff from carrying out what he was perfectly legally entitled to do. From the claimants’ response it was clear that he had been influenced by information on the internet when preparing his case.