Jump the Queue – Tip to regain possession quicker

County Court Bailiff

Unless the matter is of very significant value or legal complexity it is likely that a possession claim will be commenced and heard in the County Court where the property is geographically located. The method of enforcing possession orders in the County Court is via a County Court Bailiff.

Experience tells us that, prior to COVID-19, delays of 6 to 12 weeks were common before the possession order was finally enforced by the bailiffs.  We would expect the delays to have increased as a result of the current stay imposed.

High Court for enforcement purposes

However, landowners do have a right to request that the order for possession obtained in the County Court is “transferred up” to the High Court for enforcement purposes. High Court Enforcement Officers (“HCEOs”) are officers of the High Court and have greater powers than bailiffs in enforcing the possession order such that obstructing them when executing their ‘writ of possession’ is a contempt of court.  They are not ‘employed’ by the High Court and can be privately engaged by landowners subject to permission of the Court.

The benefit of enforcing with HCEOs

The benefit of enforcing with HCEOs is that the procedure is quicker than the County Court.  It is always worth checking with the county court bailiffs to ascertain their capacity and backlog but, in general, the HCEOs are able to enforce the order far quicker.

Given that HCEOs are essentially privately hired, there is a significant additional cost involved (approximately £750 or more) but when money/arrears are also owed, the HCEOs can both enforce the possession order and seize goods to satisfy the money aspect of the judgment. Therefore, whilst this additional time and cost of transferring up to the HCEOs may be painful for landowners to deal with on top of what may be significant arrears, it may, in fact, mitigate further losses by allowing the property to be repossessed far quicker than waiting for the County Court Bailiffs to enforce.

In order to transfer up the enforcement, a landowner will usually require permission from the Court except where it is a possession order against trespassers or mortgage repossession cases (or in cases where a suspended possession order for non-payment of rent is breached). In order to obtain permission, an application to the High Court is required and evidence must be shown that every person in actual possession of the land has received notice of the proceedings such that they can apply for relief.

Transferred up to the High Court

If you are aware at the outset that you wish to use the High Court enforcement procedure then it is worth including a request in the particulars of claim that it be transferred up to the High Court and a brief outline as to the reason why.  This will allow the matter to be dealt with at the possession hearing and may save time rather than making a separate application afterwards.

Eviction delays due to court backlog

The Courts have discretion when considering such ‘transfer up’ applications and must have regard to the financial value of the claim and whether it would be fair and convenient to transfer it up.  Experience teaches us that the Court can often be reluctant to ‘transfer up’ claims, however, in view of the serious backlogs that Court’s will no doubt face, it is hoped that the Court will be more open to the use of HCEOs.

For landowners, the additional delay in waiting for bailiffs will obviously risk additional arrears accruing and will no doubt be the reason for their application. However, occupiers may argue they are unable to find alternative accommodation in time and/or they have particular circumstances (vulnerable people with them/children) which mean the application should be denied.

Please note that from 20 September 2020 a notice of eviction must be delivered at the premises at least 14 days before the eviction date unless the Court dispenses with this requirement.  Due to recent legislation, no notice of eviction can be delivered before 21 September 2020.

Please note this does not apply when acting against trespassers who have never had permission to enter or occupy the property.

If you have any further questions regarding the ‘transferring up’ process or any other Landlord and Tenant matters, please contact the authors directly; Paul.Henson@IrwinMitchell.com and Samuel.Lane@IrwinMitchell.com.

Author: Paul Henson & Samuel Lane

Date: 7th of September 2020

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