If it Sounds Too Good to be True – Enforcing Possession Orders

A constant complaint from landlords who are trying to recover possession of rented residential properties is that everything takes so long. Not only do you have to give the appropriate notice – often 2 months – to the tenants before you can issue possession proceedings, but once you issue them they don’t normally come up for hearing until about 6-8 weeks later. The judge, if he deals with it at the first hearing, may make an order for possession in 14-28 days, and then you have to apply for a warrant for possession, and eventually get a bailiff’s appointment for an eviction some time later. Where I practice the delay is about 3-4 weeks, but in London and Birmingham it is nearer 12 weeks. So a landlord may be waiting for 8 months from when he served the initial notice (or longer if there is any sort of problem) before he gets the property back. Throughout this time the tenant is unlikely to have paid any rent, and although there will be a money judgment, this is rarely worth anything, so it is a major issue.

Of course, advising a tenant, you can tell them that they have all this time to stay in the property, and there is very little the landlord can do about it. So there is free accommodation and/or plenty of time to find somewhere else to go.

The Problem

Now, this isn’t fair. The delays in getting the order have to be accepted, but 12 weeks for an eviction is ridiculous, and a farce. So landlords and their advisors have been trying to get round the problem, and some of them had thought that they had just discovered the silver bullet – or at any rate the gun that fires the silver bullet. This is the High Court Enforcement Officer (HCEO), a self-employed official who used to be called the Sheriff (not strictly true but close enough for now.) They enforce High Court Orders (as you might expect) and are much better at getting money out of people than the County Court Bailiffs are, who enforce CC orders, largely because they are paid by results.

This is recognised by claimants, and most CC money judgments for more than £600 are transferred to the HC for enforcement by the simple procedures (sign a request in form N293A) under CPR r40.14A and CPR r83.19 and then enforced by the HCEOs.

Those of you in the know will realise that you can use the same procedure of transfer for an order for possession against trespassers, and indeed the form N293A helpfully provides for this. But the applicant (or their solicitor) has to certify that:

I intend to enforce the judgment or order by execution against goods, and/or against trespassers in the High Court and require this Certificate for this purpose.

You can’t use this simple procedure for other sorts of enforcement, such as enforcing possession orders against tenants. You have to go through the formal procedure of an application under r23 to a District Judge for a transfer from the CC to the HC under s42 County Courts Act 1984. This allows any action (with a few minor exceptions) to be transferred, and there are some criteria for determining these transfers set out in CPR r30.3. Most of the criteria don’t apply once you have a judgment, and the application can probably be dealt with on a paper application without a hearing, but is still needs to be made. If dealt with on paper it will take a few weeks, depending on workload.

However, there is another hurdle before you can enforce your CC possession order, which has now become a HC possession order, with the HCEOs. You need to issue a Writ of Possession. And under CPR r83.13 (2):

Subject to paras 3, 5 & 6, a writ of possession to enforce a judgment or order for the giving of possession of any land will not be issued without the permission of the court.

None of the exceptions cover tenants, just trespassers  and mortgagors. And even more clearly para 8 says that notice has to be given to the tenants:

(8) Permission referred to in paragraph (2) will not be granted unless it is shown—

(a) that every person in actual possession of the whole or any part of the land (‘the occupant’) has received such notice of the proceedings as appears to the court sufficient to enable the occupant to apply to the court for any relief to which the occupant may be entitled; and

(b) if the operation of the judgment or order is suspended by section 16(2) of the Landlord and Tenant Act 1954, that the applicant has not received notice in writing from the tenant that the tenant desires that the provisions of section 16(2)(a) and (b) of that subsection shall have effect.

Now it would be just about possible to argue that the occupants only had to be given notice of the original possession proceedings, which they would have been in the normal course of events. However even this has been taken away by the decision of Rose J in Nicholas v SoS 24.8.15 (unreported but covered in a note from Arden Chambers and referred to in para 63 of Birmingham CC v Mondhlani (2015)). She stated quite categorically that the occupants must be given notice of the application for permission, and as she had not been the writ was set aside, even though it had already been executed. And this decision of a High Court judge is binding on all DJs and Masters, and circuit judges in the CC.

By the time that you have issued an application for a hearing, served it on the tenants, and then attended and (hopefully) won you could easily have taken 6-8 weeks, and lost all the time that you had been hoping to save. Together with the extra cost, which you won’t in practice get back from the tenant.

The Right Thing to Do

The only way out is political – get the law changed to allow for speedier enforcement of possession orders, if people think that is a good idea. There is a good practical argument in favour of change, and although the normal objection from tenants is that HCEOs don’t give notice of the evictions, which makes removing their belongings and getting rehoused particularly difficult, this requirement could easily be inserted into any legislation, or indeed into the orders giving permission to enforce (see the Mondhlani case above for an example) so at the end of the day an amendment certainly looks possible, if anybody will take up the cudgels.

The Wrong thing to Do

Ignore the caveats, sign the N293A form, and then enforce the order without getting permission from anybody, or at any rate without giving the tenants notice of your application. You save a lot of time and make a lot of money until you are caught.

Which they have been. Nicholas v SoS, mentioned above, showed the Ministry of Defence being remarkably inventive, and Birmingham CC v Mondhlani (2015) shows Birmingham City Council, who really ought to know better, again being caught red handed. And there must be many more.

Worse, it appears that some of the larger firms of HCEOs may have been encouraging this course of action. Nearly Legal, the housing law blog, has run two excellent posts on this recently (here and here) and it looks as if there may be further developments, in the form of actions for damages by aggrieved tenants, or even arguments about contempt of court.   There are certainly a lot of comments on the blogs, on Twitter and in the legal press. A recent addition is in the Landlord Law Blog.

I will say no more for now, except to comment that it is yet another example of the truth of the old saying:

If something sounds too good to be true, it probably is.

PS – another update from Nearly Legal on this saga here.