Enforcement of Residential Possession Orders in the High Court

HCEO Residential Eviction Guide (Last updated August 2018)


Contents

  1. Introduction
  2. What is a High Court Enforcement Officer?
  3. Possession orders
  4. Using a High Court Enforcement Officer
  5. Costs
  6. Permission to transfer, an overview
    1. Permission at time of making the claim
    2. Sample cover letter
    3. Permission after possession has been granted
    4. Refusal
  7. Transfer up process
  8. Illegal evictions
  9. Frequently Asked Questions
  10. Mortgage and landlord possession statistics (January to March 2018)

Introduction

Thank you for reading our guide to the enforcement of an order for possession of a residential property using a High Court Enforcement Officer.

This guide includes the latest guidance in the transfer of possession proceedings from the County Court to the High Court, issued by HM Courts & Tribunal Services (HMCTS) in April 2016.

Many claimants believe that when they have been granted an order for possession from the County Court the only option of enforcement is to issue a warrant of possession and wait for the County Court Bailiff (CCB) to enforce the order and take back possession.

This is incorrect as a claimant may be able to transfer their possession order from the County Court to the High Court for enforcement using a High Court Enforcement Officer (HCEO).

While the possession order itself remains with the County Court, the enforcement aspect of the order may be transferred up to the High Court for enforcement purposes.

We Offer a Modern Approch to Enforcement

1888 Eviction of Tom Bermingham
Eviction scene from 1888 the home of Tom Bermingham, the Sheriff used a 30ft battering ram to gain entry

What is a High Court Enforcement Officer?

A High Court Enforcement Officer (HCEO) is an officer of the High Court of England and Wales who is responsible for enforcing writs of execution issued in the High Court, often by taking control of goods or taking back possession of a property.

Before 2004, a High Court Enforcement Officer was known as a “Sheriffs officer” and was responsible for enforcing High Court writs on behalf of the High Sheriff for each county, but are now directly responsible for enforcing such writs.

HCEO’s are authorised by or on behalf of the Lord Chancellor and assigned to one or a number of enforcement districts. Historically, they would be assigned to the shrieval county (roughly the historic shire) of the corresponding High Sheriff. They retain the common law powers of a Sheriff, and, like the Sheriff previously, can spread his authority to others acting in their presence or on their behalf. For example, every Police Constable is obliged, upon their request, to assist them in the execution of a writ.

When it comes to enforcing a residential possession order under a writ of possession, the powers an HCEO has is greater than that of the CCB. The writ authorises the HCEO to force entry to the property where access is refused, and if required use reasonable minimal force to remove any occupiers from the property. Obstructing an HCEO from carrying out the execution of a writ, is an offence and any person doing so is likely to face immediate arrest. Furthermore, an application to set aside the order does not stop the enforcement of the writ, only where the Court has granted the application will enforcement action be prevented.

Possession orders

An order for possession is an order made by a Court giving the claimant the right to recover possession of a property or land. The possession order will include a date of possession, by which the occupants must vacate and return the property to the claimant. Failing to do so could result in the possession order being enforced and any occupants in possession being evicted.

Possession proceedings can be used to obtain either a possession order for the recovery of property together with arrears of rent or solely the property.

Before possession proceedings can commence, the claimant must have first served the relevant notice seeking possession, usually a section 21 or a section 8 notice.

A section 21 notice is a no-fault notice giving at least two months’ notice whereas a section 8 notice is mostly issued due to rent arrears but can also state any of the 17 grounds for possession.

Warning, Any attempt to evict a residential tenant without a possession order or the use of a Bailiff or HCEO is illegal carrying a maximum sentence of imprisonment. Landlords should always seek professional advice.

If you are looking to regain possession of a property and you do not have a possession order, please see our residential possession service page or contact us for further advice.

Using a High Court Enforcement Officer

One of the most significant advantages of using an HCEO over a CCB is the speed at which enforcement action can take place. Due to the volume in workloads and significant cutbacks in the Court service, many claimants are facing severe delays in waiting for the CCB to enforce the possession order, often ranging from 8 – 16 weeks depending on the County Court processing times. An HCEO can in most cases carry out the eviction within 14 days or less.

Due to the way the CCB operate and the procedures they follow, evictions are often delayed or postponed when it comes to dealing with difficult occupants.

Furthermore, CCB’s do not enforce the money element of the possession order at the same time unlike HCEO’s, reducing the likelihood of recovering any rent arrears and costs.

It is not uncommon for tenants to become hostile, abusive and threatening when being evicted and we are increasingly seeing cases where the CCB’s have refused to carry out the eviction due to health and safety when occupants become difficult or violent.

HCEO’s are generally more experienced and equipped to deal with difficult occupants as they have more powers when it comes to removing occupants from the property.

It is also worth noting that CCB’s provide notice of the eviction which allows the occupant sufficient time to delay eviction proceedings by submitting an appeal application at the Court or using resistance tactics even after the Court has ordered them to leave.

Over the past few years, there has been an increase in the number of occupants providing anti-eviction groups details of the eviction date and time who then attend the eviction with the sole purpose of preventing the eviction being carried out.

Costs

Using the services of an HCEO has its advantages over the CCB. However, the cost of doing so is higher. When using either an HCEO or CCB, the claimant will be liable for any other fees incurred such as the fees for a locksmith or glazier (if required). When using an HCEO, there is also additional Court fees to request permission to transfer, ask permission to issue a writ (both using form N244) and a cost to endorse the writ.

It is worth bearing in mind that although the initial cost to use an HCEO is more expensive, when the claimant takes into consideration the loss of rent and potential damage to property while waiting for the CCB the HCEO is likely to be a cheaper and more viable option.

Unlike other companies offering this service, we do not charge an hourly waiting time fee once the eviction is underway. In most cases, we can also arrange a reduced locks smith service if required.

Potential Costs:

County Court Bailiff**:                                                             £121

High Court Enforcement Officer*:                                         £400 to £600

N244 application fee**:                                                           £100

Writ endorsement fee**:                                                         £66

Costs can vary based on a number of factors such as; property type, resistance expected and the number of occupants.

*Based on Enforcement Group cost of service (excluding of VAT)

**Correct at the time of publishing

Permission to transfer, an overview

If the occupants have failed to vacate the property by the date on the order for possession, the next step is to enforce the possession order.

Under section 42 of the County Courts Act 1984 it is possible for the court to transfer the enforcement of an order from the County Court to the High Court, however, leave (permission) of the Court is required first. Applying for permission is done by submitting form N244 to the County Court along with the £100 application fee. The transfer time varies from Court to Court and can take up to 28 days, but takes typically far less.

An application to seek permission can be made either at the time of making the possession claim or after possession has been ordered.

It is essential that such applications require the occupants to be given notice of the application in writing.

Enforcement Group can assist in requesting permission. Please contact us to discuss this.

Permission at the time of making the claim

When commencing a claim for possession with the accelerated possession form N5B or the standard possession claim forms N5 and N119, the claimant can insert a covering letter (see 6.2 for a useful template) containing a request that if possession is ordered, the order should also include permission to transfer the matter to the High Court for enforcement purposes.

As the permission is entirely at the discretion of the judge, you must include a valid reason for wanting an HCEO to enforce the order. The delay in waiting for the CCB will be a good reason. However, it is advisable to include as many reasons and as much information as possible.

Some sample reasons that have been used in the past with successful outcomes are;

  • Amount of outstanding rent
  • Financial hardship on the claimant
  • Long delay’s waiting for the County Court Bailiff
  • Anti-social behaviour
  • Damage has been caused to the property
  • Threats of damage
  • Urgent building repairs
  • Violence
  • Drug use
  • Breach of tenancy

Where the possession order includes a money order for rent arrears, the HCEO can enforce both elements of the order at the same time. It is worth bearing in mind however that HCEO’s must give seven clear days’ notice of the intention to enforce the money element.

Sample cover letter

[Insert name of County Court]

[Address of Court]

[Insert date]

Reference; application for leave to transfer enforcement proceedings

Dear Sir or Madam

My name is [insert name], and I am the claimant in these proceedings. Please find enclosed my completed claim form for possession and required documents.

If possession is ordered against the defendant, the claimant can request the Court for leave to transfer enforcement of the order to the High Court under Section 42 of the County Courts Act 1984.

I have been advised by the [Clerk/Bailiffs] at the County Court that they will be unable to carry out the eviction before (DD/MM/YYYY). However, a writ of possession can be enforced by a High Court Enforcement Officer immediately after the notice period has expired. In addition to the County Court delays, further reasons for seeking leave to transfer are:

            [to prevent further loss of rental income, which is currently over £X]

            [the defendant is not paying the rent which is causing me financial hardship]

            [the defendant and visitors are causing severe damage to the property]

            [the defendant is being anti-social towards neighbours]

            [Insert any other reasons which provide ‘good cause’ to transfer]

Pursuant to CPR 83.13, the defendant has been served with sufficient notice of possession proceedings. 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

I, therefore, ask the court without a further hearing for leave to transfer enforcement of the order (if ordered) to the High Court by adding to the possession order the following (or similar):

            “Permission is granted to transfer the matter to the High Court for enforcement.”

The facts stated in this letter I believe to be true and correct.

Yours faithfully

[Full name]

Permission after possession has been granted

Where no leave to transfer was sought in the original claim for possession or the Court has ordered a formal application notice be submitted, the next step is for the claimant to submit an application and request that under Section 42 you are permitted to transfer enforcement to the High Court for the possession order to be enforced by an HCEO.

The form required is an N244 (application notice)

Again, the application must include a valid reason for the request, but it is still up to the Judge as to whether they grant permission.

There is a court fee of £100* for the application, which must be paid at the same time the application is submitted. The fee is payable to HMCTS and is non-refundable.

When completing the N244 application, the following or similar wording should be used in part 3:

I request that the judge permit the case to be transferred without delay to the High Court for enforcement purposes, as covered by Section 42 of the County Courts Act 1984.

Part 10 of the application should include the reasons for requesting the transfer such as rent arrears, property damage, anti-social behaviour etc.

The application should be sent to the same Court that made the possession order, and a copy of the order should be attached.

*Correct at the time of publishing.

Refusal

While most applications are granted, it is important to remember that an application may be refused as ultimately it is up to the Judge to exercise his or her discretion in permitting the transfer to the High Court. We have seen significant variations across England and Wales with Judges granting and refusing permission with one Judge commenting to a claimant that “he will not take away work from his Bailiffs”. In our experience claimants have had more success in requesting permission in the initial claim for possession.

We have found that the actual reason for refusal is generally not known to the claimant and it is unlikely the claimant will be able to find out why the court refused the application. In theory, the claimant could appeal the decision however at this stage it may be more suitable and cost-effective to proceed with the CCB and request a warrant of execution.

When leave of the Court is not required

There are some circumstances where permission to transfer an order for possession to the High Court is not required:

  • Where the claim is against a trespasser (unknown persons), provided the writ is issued within three months of the order.
  • Where there is a claim for payment of money secured by mortgage, the sale of the mortgaged property, foreclosure, delivery of possession to the mortgagee by the mortgagor, redemption, reconveyance of the land or its release from the security, or delivery of possession by the mortgagee.
  • Where the possession order was granted in the High Court.

Illegal evictions

Recently some companies who have started to offer residential eviction services via the High Court route have been providing services such as “express 7-day eviction service”. These companies claim that they can transfer up the possession order and enforce the writ within seven days without seeking leave of the Court to allow the transfer. Her Majesty’s Courts and Tribunals Service have issued guidance on the transfer of possession proceedings from the County Court to the High Court, a copy of which is available from our website.

Important points:

  • To use an HCEO to enforce a residential possession order the claimant must seek leave from the County Court under Section 42 of the County Courts Act 1984.
  • Claimants should seek professional advice on such matters and make sure the process is followed correctly. Failure to do so could result in a claim being brought against the claimant and HCEO personally.
  • Leave of the Court is not required in claims against “persons unknown” and in a few other limited circumstances such as in claims relating to a mortgaged property.

It is important to remember that if you unlawfully evict a tenant (or anyone resident in the property), then you can be liable for damages which can be substantial. Furthermore, an injunction can be granted ordering you to allow anyone who has been evicted to move back into the property.

The basic rule to remember is that that if anyone at all is residing in the property, they can only be evicted by a Court order. Even when a Court order is obtained, using a CCB or HCEO acting under a possession order is the ONLY legal way you can physically remove tenants from a property if they refuse to go voluntarily.

To ensure claimants do not act unlawfully two important facts to remember are:

  • Following the date on the possession order passing, claimants should never assume the tenant has vacated. Legally someone would be a resident, even though he or she may not be physically there. This applies if they intend to return but are temporarily absent, e.g. because they are in a hospital, on holiday or in prison.
  • Where your tenant confirms they have vacated the premises, it is essential that they return the keys to you. In this situation, where the keys are handed over by the tenant who moves out, the tenancy will be ended by an implied surrender, i.e. by the action of the tenant, which is then accepted by the landlord.

Frequently Asked Questions

We often get asked various questions regarding the application process, transfer up procedure and the actual eviction, therefore, we have compiled a short list of frequently asked questions.

Q: What happens once the writ has been sealed?

A: Once the writ has been sealed, we will liaise with you and the HCEO to arrange a suitable time and date for the eviction to take place. A risk assessment and pre-enforcement checks will be carried out before the eviction date, and where deemed necessary we will arrange for the Police to be in attendance.

Q: What happens if the occupants refuse to leave?

A: The writ commands the HCEO to return possession to the claimant, and the HCEO is authorised to use reasonable force to gain entry and remove any person(s) who are refusing to leave. In practice, the HCEO will typically call upon the Police to assist in the physical removal of any person(s).

Q: What happens on the eviction day?

A: On the day of the eviction the HCEO will meet the claimant or his representative at or near to the property to discuss the eviction process. The HCEO will then proceed to gain entry to the premises. The HCEO will request any occupant(s) to leave, usually allowing around an hour to collect essential items. The HCEO will promptly display the appropriate notices at the property and secure the property against re-entry by changing the locks before handing possession back to the claimant or his representative.

Q: What happens to the occupant’s belongings?

A: The claimant has a duty of care towards possessions left inside the property and must not dispose, damage or refuse to return any belongings following the eviction. We would usually advise that a Torts notice is issued to the occupant(s) at the time of eviction or be displayed at the property if they are not present. This notice places liability on the occupant that should they fail to contact the claimant and arrange to remove any belongings within a reasonable period (usually seven days) the claimant will dispose of them accordingly. The claimant should arrange with the occupant a mutually convenient time and date to allow for the removal of such belongings.

Mortgage and landlord possession statistics

Every quarter the Ministry of Justice reports the latest statistics on the numbers of mortgage and landlord possession actions in the County Courts of England and Wales.

Visit our Mortgage & Landlord Possession Statistics page to view the latest release.

HMCTS guidance orders for possession

On the 20/02/2015 HM Courts & Tribunals Service issued official guidance on the transfer of possession proceeding from the Couty Court to the High Court following a number of issues raised in relation to the transfer up process and the sealing of a writ of possession.

Disclaimer

Please be aware that the information provided on our website are subject to change. We recommend that you do not take any information held within as a definitive guide to the law or the relevant matter being discussed. You are advised to seek legal or professional advice where necessary rather than relying on the content supplied by the author(s) of this website. Due to the nature of the matters discussed on this website, the information contained within it and any pages linked to from it are subject to change, without warning. The law, regulations and other forms of legal governance are continually changing and adapting to meet the needs of the modern world, and it is impossible to comprehensively detail the nature of such within the confines of a blog in a concise, up-to-date manner.

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