“Trapped in the bureaucracy nightmare, real families suffer when the big banks and their servicers force foreclosures. The emotional toll on children packing up their rooms and on parents struggling to find a temporary roof is a deep one.” – Senator Sheldon Whitehouse

Oxforddictionaries.com defines eviction as “the action of expelling someone, especially a tenant, from a property; expulsion”

Expulsion. The word even sounds harsh, in my view.

Eviction is indeed a horrible thing at the best of times (although I’m sure most would agree that there is no “best time” from the perspective of the one(s) being evicted). Sadly, here in Bermuda, evictions are not an uncommon occurrence – with some being carried out very publicly by the office of the Bailiffs, headed by the Head Bailiff who also serves as Deputy Provost Marshal General.

There are a variety of reasons and circumstances for which eviction orders have been issued. These include:

  • Mortgage repossessions
  • Tenant evictions (including evictions by Mortgagee banks, as a consequence of mortgage repossessions if it is found that the mortgage predated the lease or tenancy agreement and the Mortgagee did not give consent if such consent was required by the terms of the mortgage)
  • Arising as a result of family disputes
  • Actions by Judgment Creditors against Judgment Debtors, for such things as court costs (but as set out further below it is my belief, based on the reading of a 2013 Supreme Court Judgment, that the courts have no such authority to order such evictions in certain circumstances)

Many evictions are understandable: an inevitable result in many cases, for example in the case of a nonpaying tenant as the rights of the landlord etc. must be balanced and protected. But not all evictions are so easily understood…

Recent eviction by Bailiffs on court orders on Middle Road, Southampton West

 

One of my favorite sayings is “things are not always as they appear” and, based on my
observations, conversations, readings and meetings with people who have been evicted – or are facing eviction – this saying holds true with regard to eviction actions. Are all evictions carried out correctly? Have all of the evictions carried out throughout the years been justified? Should each and every eviction order have actually been made? There are some who would strongly cry out “No” to each of these questions.

Challenges in the Bailiff’s Department

According to the Bermuda Judiciary Annual Report 2015, for the years 2011, 2012, 2013, 2014 and 2015 there were 45, 45, 44, 42 and 29 evictions respectively. I can only hope that those persons evicted were dealt with fairly and justly in all cases.

I see from the Judiciary’s 2012 Annual Report that “the post of the Head Bailiff was filled back in July by Christopher Terry. He was immediately tasked with improving the service levels as well as placing quite a deal of focus on organizing the duties of the Provost Marshal General which had been suffering for quite some time.” The report also includes these paragraphs:

“Given the number of challenges faced by the Bailiffs Office this department is in need of an overall review with the goal of possibly either moving towards a Marshal Service (similar to other courts in the US that deal with Bailiff and Court Security Services), or moving to a structure similar to the UK that will allow for regulated Private Processors as well as varying categories of Bailiffs/Enforcement Officers based on duties and skill sets.”

“…One of the departments that has been the most difficult to manage has been the Bailiffs Department and with the ever increasing demand for enforcement more administrative control is required legislatively over the staff”.

The 2012 Report also reveals that “From May onwards throughout the duration of 2012 two of the five Bailiffs were placed on Administrative Leave for disciplinary purposes”, while showing that a third was placed on Administrative Leave for personal reasons. It would be interesting to know the real story behind the disciplinary leave, and what impact there may have been on the public.

The 2012 Report is a fruitful source of information, as among the concerns it raises is that “… the Police are mandated to provide assistance to the Bailiffs when required. The reality is that the Police have not trained to deal effectively with civil litigants and have been criticised for being heavy handed. Through no fault of their own this is in part due to the fact that civil prisoners were not addressed under the PACE legislation. Further to this, there has been recent conflict between the Bailiffs and the Police in terms of whose instructions should be followed…” For full context it would be best to read the relevant sections of the Report in full, but in light of what is said – and the fact that the Police can be and are, at least in some cases, called on to assist with evictions – the lack of training described in 2012 is concerning.

Have the various “challenges” then facing the Bailiff’s Department been overcome? I would be very interested in knowing the answer; can the public please have an update?

There was a recent eviction that became very public, due to the location of the property on a main road combined with the fact that the evictee’s possessions were thrown in a huge heap and – instead of being trucked away and secured – left for days exposed to the elements for the world to see (and in the process seemingly causing understandable distress to neighbours). I do not know many facts surrounding this case, but have to ask: could there ever be a good reason for an eviction to be carried out in that manner? (Or for breakages and property destruction, as has also been known to happen?)

What happened to the abovementioned possessions in the recent eviction? They were, after a number of days, removed by truckers – but removed to where? Were they incinerated, as has happened in the past?

Again I do not know the full circumstances, but I do have details of an eviction carried out a few years ago where, to my understanding, a lifetime of possessions were disposed of without proper notice. I would hate to think that peoples lives are still being handled in such a manner, and question how such actions jibe with the “Instructions to Plaintiff” found on the Bermuda Judiciary website outlining the responsibilities of a Plaintiff with regard to eviction warrants. There are seven responsibilities listed in the said instructions, including “You must have movers to remove the Defendant’s property if needed” and “You must provide a truck and drivers to remove the Defendant’s property if needed”. The instructions seem clear. I cannot, therefore, help but wonder how the evictee’s possessions in the case mentioned above ended up heaped outside uncollected and unmoved for days?

“Safe storage”

What IS meant to happen to belongings, if there are possessions to be removed during the course of the eviction? Is there uniformity in where they end up? If so, who decides? Does the office of the Bailiff have any say? Or is it strictly up to the person or entity that obtained the eviction order (or their attorneys)? I call for the Bailiff’s Department to give a clear answer to these queries, but note that in a Royal Gazette article from 2006 lawyer Justin Williams, acting for the then Capital G Bank (now Clarien Bank) confirmed the execution of a Writ of Execution and is quoted as saying “This involves the bank taking physical possession of the property”. Mr. Williams went on to say that the “bank’s agents” were assisting the occupants “to move their belongings out of the premises and into safe storage”.

Safe storage. It seems that should always be the goal, at least for a reasonable period of time. How often does this take place, though, in fact?

A court ordered eviction doesn’t mean it’s right!

In January 2013 an eviction was carried out that had the appearance of legality – but I am aware from a subsequent Supreme Court Judgment that the Court had no authority to make that order (it was obtained by a Judgment Creditor against a Judgment Debtor over court costs). After approximately three months out of possession the person evicted moved back into his property, where he remains to date. There has never, to my knowledge, been a formal acknowledgment that he was wrongly evicted but his right to possession is tacitly acknowledged.

I have recently been informed of one other, later, case also involving court costs where a family was threatened with eviction. This begs the questions: How many others have there been? Are people still being evicted where under the law they shouldn’t be? Even one wrongful eviction is one too many. Let’s ensure that there are no more, and to help ensure this let’s stand up and speak up on issues such as these.

Evictions: a necessary evil some may say. But don’t we, as a society, have a duty to ensure that they are always carried out properly, with uniformity and conformity to the law? (And a big dose of humanity wouldn’t hurt either)

By Judith Chambers

Judith Chambers, F.Nalp is a paralegal who currently acts as a freelance consultant in various areas. An active member of the pressure group the Civil Justice Advocacy Group (“CJAG”, reachable at bdaciviljustice@gmail.com), she is also the administrator of two Facebook groups and a regular commentator on social issues. Comments may also be sent to judycha63@gmail.com

This opinion is that of the author, and is not to be taken as giving legal or any other form of advice. For those interested in reading more about dispossession in Bermuda and related issues concerning the judicial and related systems you are invited to join the Facebook group Dispossession in Bermuda – Our Story

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