Mindfulness in the process of possession
In recent years, we’ve seen a rise in possession orders being transferred from county court to the high court for enforcement.
The question is, why has this increased, and what are the benefits of this method?
There are three types of possession orders: Squatter or trespasser; mortgage and landlord/tenant.
Squatter or trespasser allows an automatic right to transfer the possession order to the high court, however, mortgage and landlord/tenant are different, and permission is required.
The rise of transferred possession orders relates to landlord/tenant matters, and is mainly due to frustrations over delays in obtaining dates for enforcement in the county court, which is often more than eight weeks.
Where the county court can offer possession appointments in less than four weeks in a landlord/tenant matter, there’s no justification to transfer a case, as it will be both timely and costly. But where that period is longer, particularly more than eight weeks, there is justification.
While a higher fee will be paid by the landlord which is not passed on to the tenant, having the property back earlier represents savings as it can be re-let earlier. What’s often forgotten is that many landlords have only a low number of properties, or are in a position where losing revenue adversely impacts and delays the process of recovering the property from a non-paying tenant.
This puts the landlord in a difficult position as they manage an increasing debt. In some cases, the landlord will have more than one mortgage or extra costs to pay on these properties, and are reliant on this income.
Transferring a case after obtaining an order of possession is straightforward. It starts with a Section 42 application to the county court, which seeks permission to transfer, whereby the court granting the order considers the circumstances. If the judge feels there are sufficient grounds to transfer, the order will be granted.
The judge will consider any delays encountered by the enforcement agent in scheduling an appointment, plus any impact on both the occupier and the landlord. The landlord has to justify the reasons. Once this order has been granted, the transfer process can be completed through the high court and a writ of possession will be issued. The Section 42 application is best made at the time of seeking the order of possession.
While all high court enforcement officers (HCEOs) enforce all types of writs of possession, the levels of service received and costs varies greatly, and it is important, when instructing, to understand what service the HCEO will offer, and any extra costs that may be charged.
Evictions are often notoriously difficult to give precise costs for in advance, but most HCEOs should be able to give a reasonable estimate, particularly in a landlord/tenant matter.
The service can vary greatly. Under a writ of possession there are only a few circumstances where it would be unreasonable to give the occupier notice of the eviction.
While some HCEOs attend and carry out the eviction without notice, others send a letter with notice, and some attend the property to warn the occupier and establish any issues; giving a reasonable opportunity for occupiers to leave in advance or prepare.
In a landlord/tenant matter, I believe that unless exceptional circumstances apply, a visit should take place to warn the occupier. If they’re unable to meet the occupier, a letter should be posted by hand. Although it’s important for a landlord to obtain the property quickly, subject to the order, we must not forget the impact on the occupier.
We hold not just a duty of care but also a social responsibility to ensure care is taken handling the case. The occupier may be at their most vulnerable at this time and when handled with sensitivity, it will avoid anxiety leading up to and during the eviction.
It’s also important to have contact details, whereby an occupier can raise concerns and be directed to advisors such as Citizens Advice and the Samaritans.
Once a possession order has been transferred and a writ issued, the eviction will happen within 14 days of the HCEO’s instruction.