We have all heard on the news how the UK Government is doing its utmost to keep tenants in their homes, and business premises, as a result of the COVID pandemic.
With that in mind, we are reaching out to our landlord and the legal community to explain our approach under COVID regulations.
Under the new rules introduced at the end of September 2020, a Notice of Eviction must be served personally by an enforcement agent giving the tenant and other occupiers 14 days’ notice of the eviction appointment. Once this time has passed and assume the property is still occupied, we can provide the eviction service. This part of the service is covered in our fixed price fee. We will also agree on the date of the eviction with you.
But the problem that many commentators are talking about is the delay that landlords are going to experience in leaving their Possession Order in the county court system for enforcement. The latest figures suggest that the county courts are facing a backlog of over 100,000 evictions.
As High Court Enforcement professionals our job is not to have a political position on Government policy. Our job is to execute any Possession Orders which are capable of being enforced as efficiently as possible.
Every day we are asked to help landlords enforce their Orders for Possession as the County Court system buckles under the weight of its COVID backlog. What we offer is a faster system to evict tenants who have been ordered to leave provided we can tick the boxes for the Court. Read our updated blog on this topic to see if we can help you – it fits on one side of A4 – or just about!
Q: Is it possible to transfer order for possession involving a residential tenant from the county court to the high court?
A: The simple answer is yes – although the Government halted evictions at private houses until 21st September. We also think the Government has reserved the right to turn “the tap” on or off, depending on statistics so we encourage all landlords to edge their claims forward so that they are able to enforce at a point in the future.
Q: For the lawyers and advisors – 101 on the procedural rules allowing transfer?
A: The Government has legislated across many areas of the landlord and tenant relationship to ease the impact of the pandemic on people renting homes – see https://bit.ly/3leWf87
Possession proceedings are governed by The Civil Procedure Rules, Part 55 and Part 70 and Part 83, all of which have been reviewed in the light of the Government’s policy to maintain the status quo between landlords and their tenants.
Q: How does a claimant take advantage of the High Court enforcement procedure?
A: Claimant landlords should include in their claim for possession a request for the order for possession to be transferred to the High Court for enforcement so that the landlord’s interest in the property can be returned to him/her/it as soon as possible.
Q: Will the District Judge in the county court agree to my possession order to be transferred to the High Court?
A: Judges have to balance the competing interests of the parties when making a possession order and we must assume Judges will be following Government policy guidelines in how they decide which claim for possession should be allowed to be transferred to the High Court.
It has always been the case that submissions above the adverse consequences of a delay in the enforcement process will have to be made to a Judge. This has intensified as a result of COVID-19.
In particular, the Courts are adopting a system of “marking” case files with COVID-19 reasons which affect either party. Parties apply to have their case “marked” with a COVID-19 reason. This in turn means the claim will be prioritized in the Court system.
Covid-19 Case Marking by a landlord claiming possession will require the following information to be put before the Court |
- Brief details of the particular hardship faced by the Claimant;
- Whether the Claimant has received assistance under a Covid-19 scheme, including any borrowing by the Landlord in respect of the property
Also, certain possession cases are being prioritized by the Court meaning the listing of these cases will come first – so again landlords should use this list to push their claim to the top of a very long list of claims.
The priorities for dealing with cases include
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Cases with allegations of anti-social behaviour, including Ground 7A of Schedule 2 to the Housing Act 1988 and Section 84A of the Housing Act 1985.
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Cases with extreme alleged rent arrears accrued, that is, arrears equal to at least
(i) 12 months’ rent or
(ii) 9 months’ rent where amounts to more than 25% of a private landlord’s total annual income from any source.
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Cases involving alleged squatters, illegal occupiers or persons unknown
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Cases involving an allegation of domestic violence where possession of the property is alleged to be important for particular reasons which are set out in the claim form (and with domestic violence agencies alerted).
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Cases with allegations of fraud or deception.
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Cases with allegations of unlawful subletting.
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Cases with allegations of abandonment of the property, non-occupation or death of the defendant.
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Cases concerning what was allocated by an authority as ‘temporary accommodation’ and is specifically needed by the authority for reallocation as ‘temporary accommodation’.
Please note as this is an evolving situation other circumstances may warrant priority, and further amplification of the Court’s Guidance may be published in the future.
Combining both a priority as listed in a) to h) above plus COVID-19 Case Marking means delving a little deeper into the landlord’s situation and preparing cases so that a compelling submission is made of the very real impact on a landlord.
If the Judge is swayed by the landlord’s arguments, he or she can use their discretionary power to make an order transferring the possession order to the High Court. Prior to COVID-19, our experience of over 10+ years of managing this transfer process was that judges could be persuaded to help a claimant landlord with this request in 9 out of 10 cases where the request was made in the claim form.
We will continue to monitor cases where we have achieved a transfer of a possession order and report on situations in this blog. Case studies provide insight into judges and Courts. Some Courts will be stricter than others!
What we can say is that the time to make the application to transfer to the High Court is in the claim form and at the possession hearing. This gives the landlord the best chance of getting the Judge to exercise his or her discretion favourably. Post Possession Order it can still be done but the odds drop of achieving the right outcome.
Q: The “Magic Words” For Transfer
A: We call them the “Magic Words” because we know they work. So, to make the application, we recommend that in every Claim Form and Particulars of Claim which is filed in a County Court possession action, the following wording should be included as a standard procedure:
“AND the claimant intends to make an application for leave to have the matter transferred to the High Court pursuant to section 42 of the County Court Act 1984 for enforcement”
If the judge wants to know why the request is being made it is always worth checking in advance of the hearing the likely time it takes in that court for a Warrant of Possession to be enforced. We know that one Court – Clerkenwell – just told our client – as an advisor to a landlord – they couldn’t give a date for any eviction.
Prior to COVID-10 a delay of more than 3 weeks in Greater London (6 weeks outside of Greater London or the M25) was a general “rule of thumb” on how to show that the claimant landlord will be out of pocket if the order is not made.
We encourage landlords to start that these periods in mind and then build up their case with the adverse impacts we have discussed above to demonstrate to the Court the seriousness of the landlord’s own situation.
Q: What to do next if permission is granted?
A: If an Order is made in the terms above (it may vary slightly but broadly it should follow our Magic Words) you can send us your possession order and we will do all the follow-up work to enable the eviction to be planned within 3 weeks of the date of the Order.
You can upload your possession order on our website and pre-pay for your eviction.
Alternatively, you can send it or email it to us, and we will do ALL the necessary paperwork to complete the transfer process.
Q: What Will it Cost to Transfer?
A: To get an early eviction date, we charge £799 + VAT.
Once you have your possession order with the necessary wording send it to us and we will work to get you as early an eviction date as possible, complying with all the court rules on service of the new Notice of Eviction. We will take care of all the service requirements using our national panel of enforcement agents who will carry out the eviction in a further 14 days after the Notice of Eviction has been served.
This is where landlords can start to see the cost benefits of adding the “Magic Words” to their claims.
Q: What if the “Magic Words” are not included in the claim for possession?
A: If you don’t include the “Magic Words” in the claim form it is still possible to apply to the Court for an order AFTER your possession order has been made.
BUT please be aware at this stage the judge is more likely to scrutinize your reasons for seeking an order and we found that before the pandemic the success rate in transferring to the High Court dropped to about 5 out of 10 cases.
However, these applications become important if a landlord is losing weekly rental income equivalent to £350 in Greater London (or £170 outside of London).
It doesn’t take long for a landlord to be out of pocket if it is going to take the Court 3 weeks or more to evict the tenant(s) in Greater London, or 6 weeks outside the M25.
We can offer you a service to make a Post Possession Order application at a flat fee of £699 plus VAT which includes the court fee on making the application to the Court.
If you didn’t know about the special wording in advance of hearing, we recommend
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Updating your process for possession proceedings so that EVERY claim you make for possession has the wording – you may not need it – but at least you will have it in your claim form and particulars of claim.
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Contact the court where the eviction will be carried out to find out the time it will take to enforce a Warrant of Possession.
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Have that information available for the Court at any hearing along with all the information we set out above to demonstrate to the Court why your claim should be marked for COVID-19 and any other reasons which make your claim a priority
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Calculate your loss of rent and tell the judge about this if he or she asks you about what would happen if you had to wait for a Warrant of Possession to be enforced.
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Use our Post Possession Order application to get an Order allowing you to transfer to the High Court for enforcement. Budget in an extra £699 plus VAT for us to seek leave for you. We cannot guarantee leave will be granted – but when faced with no end in sight to getting an eviction it may be worth this extra investment in court proceedings to push your claim forward to getting a date for enforcement.
Q: How can all this help landlords?
A: The whole point is to save claimant landlords losses in rental income so that tenants who are not meeting their obligations can be removed from the property. Possession Orders themselves fall into 2 types being
- With permission to transfer or
- Without permission to transfer
WITH PERMISSION TO TRANSFER: If you have permission to transfer your Possession Order already you start the transfer process immediately. You can use our fixed price package of £799+ VAT to transfer the order to Shergroup. As part of our Property Solutions, we will manage the whole process all the way through to eviction for you, including all the new requirements.
WITHOUT PERMISSION TO TRANSFER: If don’t have express wording in your Possession Order then the good news is you still have an option. You can enforce your Possession Order, whether it’s a PCOL version, or a County Court Order by making a separate application to seek that permission. We can take care of this for you under a second, ed fixed package of £699 plus VAT, which includes updating your Possession Order with the Court’s permission.
We will apply to the county court to ask the Court to make an order allowing the enforcement to take place in the High Court with Shergroup. The judge has discretion on whether to make that order so we will work with you to put forward the best reasons why the delay in the county court is going to adversely impact you or your business. We cannot guarantee that the Court will make the order – but if it doesn’t then we will refund you the eviction management part of your fixed fee in the sum of £699+ VAT without any quibble.
Transferring an order of possession to the High Court
Here is the transfer up process
Step 1 – leave to transfer
Initially apply for an order for possession to Transfer the order for possession to the High Court for enforcement must obtain under Section 42 of the County Courts Act.
If you missed doing it in the initial stage, then you can do so using form N244, with a court fee of £100.
Step 2 – Obtain a writ of possession
Use form N244, to apply to either the High Court or the District Registry to obtain a writ of possession. There is a court fee of £100. If an “on notice” hearing is needed then the court fee will increase to £255.
Step 3 – form PF92
Form PF92 is required to be completed in order to get permission to issue a writ of possession in the High Court and can be sealed at the High Court or District Registry with no court fee.
Step 4a – form PF88 for a possession order
The form PF88 is the request to obtain the writ of possession and can be sealed at the High Court or District Registry with a court fee of £71.
Step 4b – form PF89 for a possession order and recovery of money
The form PF89 is the request to obtain the combined writ of possession and writ of control and it can be sealed at the High Court or District Registry with a court fee of £71. Mostly court permission is not needed to transfer up the money judgment like for example rent arrears or costs.
Steps 3 and 4 combined
We will help you submit Forms PF92 and PF88/PF89.
Step 5 – Form No.66
Form No.66 is for the writ of possession and the appeal that it be sealed at the High Court or District Registry.
Once the writ of possession has been awarded, the enforcement process will begin.
AND FINALLY ……
If you just want to submit your Possession Order to us for us to advise you on what you do need to do next we are happy to help. We offer a FREE review service for all types of County Court possession orders. You can speak to one of our trained advisors and they will guide you on the best option for you and your situation.