Enforcement of a Residential Possession Order via the High Court
Once you have obtained a possession order against your tenant, it would be reasonable to expect your tenant to vacate the property by the date given. Unfortunately this often does not occur and the only way you can actually get your tenant out of the property is by means of a formal eviction. With it taking up to 4 weeks in some case for a baliff to apply a warrant, Simpson Millar LLP (formerly Colemans) solicitor, Alistair Spencer, looks at how to make an enforcement of a residential possession order via the High Court.
When it comes to making a formal evistion of a tenant, the usual position is to instruct a County Court Bailiff to undertake the eviction and pay the Court fee for the warrant of possession. The bailiff will then set down a date for the eviction and send advance written notification to your tenant at the property address of the impending eviction. The bailiff will subsequently attend on the notified date to execute the warrant of possession and evict the tenant.
In principal this sounds fine and often it is, but many County Court Bailiffs are currently severely overworked and its not unusual, especially in Greater London, to have to wait up to 4 weeks after applying for a warrant of possession, before the eviction happens. In many cases during this period the Landlord won’t receive any rent.
If you also have a particularly difficult and troublesome tenant who has used every tactic to delay and prevent you obtaining the possession order then they may also try and suspend the warrant of possession to delay the eviction.
In these circumstances it could well be worth applying to transfer the enforcement of a Possession Order obtained at the County Court via a writ of fi fa to the High Court.
In order to proceed down this route you will first need to persuade the County Court Judge at the Possession hearing to make an order that the case can be transferred to the High Court for enforcement. Many County Court Judges are initially reluctant to do this but if you argue the point and have your authorities to hand (including s.42 of the County Courts Act 1982) then it is possible to persuade them to allow the transfer.
Once you have the sealed possession order from the Court you will need to complete an application for the combined writ of possession/ writ of fieri facias and have this sealed by the County Court in which the Possession Order was made. This should then be sent to the High Court along with the writ of fa with the appropriate fee for a writ of possession. Once the combined writ of possession/fieri facias has been granted you can then use a High Court Sheriff, the High Court equivalent of a County Court Bailiff to enforce the writ.
The combined writ of possession/fieri facias will allow the High Court Sheriff in addition to obtaining possession to also seize assets to set against any rent arrears and costs which are outstanding under the Possession Order.
Advantages of enforcing via the High Court
- From the date you have obtained the combined writ of possession/writ of fi fa, a High Court Sheriff is usally in a position to execute the writ and evict the tenant within 7 days.
- The tenant is not provided with any notice of a High Court Sheriff’s appointment. The first they will know is when the Sheriff turns up at the door. It is therefore extremely difficult for them to make an application to suspend the writ as can be quite common in relation to warrants for possession obtained through the County Court.
- In addition to obtaining possession the High Court Sheriff can at the same time also seize goods to try and satisfy any money judgement obtained against the tenant, such as for rent arrears
Disadvantages of enforcing via the High Court
The cost of High Court Sheriff is significantly more than a County Court Bailiff although when weighed against the possibility of obtaining possession within a week and the reduced loss of rent, this is in many cases a financially prudent option.At Simpson Millar LLP (formerly Colemans) our landlord and tenant department handle all types of legal issues for property landlords. If you want to find out what your options are when it comes to the law contact Simpson Millar LLP (formerly Colemans) to find out how we can help.