Time for a change: To speed up the enforcement of possession orders
This article deals with:
1. The problem of delays in the court system for landlords of AST tenants who have a court order for possession and want to enforce it;
2. A solution to the problem; and
3. A call for a change in the law.
1) The problem
As a landlord it is hoped that your tenant will pay their rent on time and vacate when requested at the end of a tenancy. Unfortunately there are many occasions where landlords find that tenants fail to pay their rent and / or fail to vacate when requested. In such circumstances it will be necessary to issue proceedings. If there are no arrears of rent landlords can issue accelerated possession proceedings. If there are arrears it will be necessary to issue the standard set of possession proceedings which will require a hearing.
This can be particularly frustrating when a landlord is due to sell a property.
In any event, court proceedings can take time and it could be 6 weeks or longer before the claim is even listed for a hearing. In total, it can be up to 4 months from the date that the landlord first serves the notice before he obtains a court order for possession. It is then a source of huge frustration that after months spent serving the relevant notice, issuing proceedings and obtaining a possession order, there is then a further final delay in waiting for the county court bailiffs to enforce a warrant of possession.
There is roughly a standard 4 – 6 week delay in the county courts from the date on the order for the tenant to give up possession of the property, to the date that the bailiffs eventually execute a warrant and sometimes the wait can be even longer. The length of the delay can vary from court to court but the reduction in the number of bailiffs nationally means that delays are likely to become even longer in the future.
This situation can cause huge irritation to a landlord. The reality is usually that the tenant has failed to pay the rent, which led to the whole process in the first place. The landlord then has to pay legal costs to remove a tenant that is in arrears of rent which the landlord may find are irrecoverable. The icing on the cake is then to face months of further unnecessary waiting even after obtaining the order for possession. In financial terms, this can cause a landlord considerable difficulty especially if the property is a buy to let and he has to pay the mortgage, including mortgage interest, and other bills.
2. The Solution
There is a solution to this problem which is to apply to the judge at the time of the possession hearing under Section 42 of the County Court Act 1984 for permission to transfer the possession order from the county court to the High Court for enforcement using a High Court Enforcement Officer. Using High Court Enforcement Officers makes the process far quicker and easier.
This process is, however, entirely discretionary and there are no guarantees it will be granted. Some judges seem more amenable to such applications than others. There does not seem to be a consistent approach.
Why should this application be discretionary? Why is it not mandatory?
The Civil Procedure Rules have made a distinction between claims against "trespassers" (primarily squatters) and normal possession proceedings. In claims against trespassers the court's permission is not required for transfer to the High Court, but the procedure is not the same for standard possession proceedings.
3. Is it not now time for a change in the law?
Until the court rules are changed to address this inequality head on we suggest that, if you find yourself in the unfortunate situation where you need to issue possession proceedings and you need possession at the earliest opportunity, you apply for a transfer to the High Court at the time of the possession hearing.
When asking the court to exercise its discretion to transfer, ensure that your arguments are as comprehensive as possible, including details of any additional adverse financial hardship you will suffer if there are significant delays. It is also worth speaking to the bailiff team before the hearing so you can advise the judge whether there are any anticipated delays to help strengthen your position.