High Court Enforcement | Possession Orders | A Political Hot Potato

In the last week, it’s just not BREXIT that politicians have been debating in Parliament (just in case you wondered what else there is to debate).  Alongside this controversial topic, there is another smaller one brewing, and that is the age-old argument about the fairness of high court, county court enforcement vs bailiff and when they should be used.

We think it fair to say that these debates have been ongoing since the Payne Report of 1971 – and probably before that if anyone dug out the archives going back deep into our political history.   As we have said Sheriffs have been part of the English system since 992 A.D. being the second oldest secular office next to the Crown itself.

High Court Enforcement of Possession Order

The usefulness of such debates on the enforcement process within the legal system is for another blog post.  Enforcement itself is “a-political” which means it has no political affiliation and must be entirely neutral in its process and deployment.

We think by and large that is exactly how enforcement agents and their teams operate.  Of course, in any profession, there are bad apples, and when they are identified, they must be reprimanded in whatever way is appropriate.

As every High Court Enforcement Officer knows, the enforcement by the law of a Writ of Possession is one where the approach must be one of firmness but fairness.  Eviction by its very nature is highly controversial and unpopular.  The world at large is now much more aware of what eviction looks like as a result of the “Can’t Pay, We’ll Take It Away” TV series in which our CEO has been a consultant for the last 4 years.  Paul Bohill himself became a national treasure because of his TV presence on this show.  He’s willing to help the people who were being evicted BEHIND the camera is a well-kept secret but we saw at first hand the way he tried to make a difference to the folk involved.

Guide to enforcement of possession orders

Possession orders are used by property and landowners, private and public sector, to remove tenants and trespassers from property or land.

Residential trespassers

Squatting in residential property is now a criminal offence under the Legal Service, Sentencing and Punishment of Offenders Act 2012.

Residential repossession

The landlord can apply to the court for an order of possession to repossess his property from his tenants. Most private tenancies started on or after 28th February 1997 are assured shorthold tenancies (AST). Orders for possession can be enforced by a High Court Enforcement Officer, Agents, Sheriffs, County Court Bailiff (CCB).

Commercial repossession

A commercial landlord can petition for an order for possession against tenants, But can also use the Common Law of forfeiture of the lease.

The landlord will usually appoint a Bailiff, Sheriff to enter the premises, change the locks and take possession of the property.

If the tenant had escaped owing rent, the landlord can repossess following Common Law, apply for a County Court Judgment (CCJ) for the rent arrears, which is then enforceable by an HCEO under a writ of fieri facias (fi fa).

Trespassers in commercial property

A landlord can petition against “persons unknown” by applying an order for possession. The possession order will be made in the County Court. But can be transferred to the High Court for enforcement using Form N293A does not require approval from the Court as section 42 does not apply.

After the order has been transferred, a writ of possession will be issued, which the HCEO will then enforce. HCEOs are not expected to give notice of enforcement.

Enforcement of possession orders by writs of possession in the High Court

But the fact that remains that if landlords and property professionals go to the Court for a Possession Order, and the Court makes the Order, then the legal system must have the processes in place to deal with the enforcement action if of course, the occupants don’t remove themselves voluntarily.  And of course, on this point, there are reasons why people don’t move on because they want to be re-housed (see the link to Shelter below and how this system eviction far more emotive at the time the Order is enforced).

Statistics on claims for possession and warrants are published quarterly by the National Statistics Office (https://bit.ly/2Hi65a1).  As of September 2018, the number of landlord possession actions at all stages has decreased, which is part of a longer-term downward trend since Q2 of 2014.  Compared to the same quarter last year, landlord possession actions; claims (31,658), orders for possession (23,630), warrants issued (15,498) and repossessions (8,138) have decreased by 7%, 6%, 9% and 8% respectively.

So, possession actions for landlords are down which is good news for county courts trying to cope with significant volumes of Claims and Warrants for Possession.  But what about High Court Writs of Possession?  There are no official statistics published on the number of these types of Writs. 

County Court enforcement of Possession Orders

What we do know is that we continue to see new landlord clients coming into our community looking for a more efficient way to enforce their possession order.  Often the trigger point to turn away from the County Court system is the eviction date given by the County Court which is more than a month ahead. Claimants need to take immediate enforcement action to repossession their property as they themselves are often losing money on a tenant who is unable to pay the rent.  A month or more of lost rent is a financial loss to the landlord and it cannot be easily recouped.

We accept that the knock-on effect of such action is that the evicted occupants have to have a roof over their heads.  Access to legal advice for people being evicted is not something that High Court enforcement officers can provide, in terms of their neutrality, but we can and must point people who are evicted to the resources available and we would like to see more local authorities engaged with us on this aspect of our role.  Here is a simple page from the Shelter website to guide someone who is about to be evicted to start plan where they are going to live.  (https://bit.ly/2QUpehP) .  If you are at risk of eviction, please seek out advice and follow the steps carefully.

As for landlords and others seeking advice on how to use High Court Enforcement Officers and reduce the delay in using a County Court Warrant of Possession, our team of friendly and expert Business Solution Advisors can guide you through the simple process of converting a County Court Order for Possession into a High Court Writ of Possession.  Timelines for this process can be as little as 7 days.

Call Shergroup on 0845 890 9200 and we will be happy to speak to you about your next steps.