Landlord: I have an Order for Possession – what now?


Evicting a tenant is often a difficult and drawn out process for residential landlords. Of course, landlords must comply with requisite notice periods and issue proceedings (mostly in the County Court) with a view to obtaining a warrant of possession of the rental property; a process which often takes several months in itself.

Even after the warrant has been obtained, however, a residential landlord will often wait many weeks, if not months, for an appointment from a County Court Bailiff to attempt eviction, causing further losses.

To overcome this, many landlords have sought to transfer their possession proceedings to the High Court with a view to applying for a ‘writ of possession’ to be executed by one of the licenced High Court Enforcement Officers within a much quicker time frame.

The procedure

To transfer the proceedings to the High Court, a landlord must:

  1. Apply to the Court for an order transferring up to the High Court (pursuant to section 42 of the County Courts Act 1984); and
  2. Once transferred, apply to the High Court for permission to issue a ‘writ of possession’ (pursuant to rule 83.13(8) of the Civil Procedure Rules).

Permission to issue a writ will not be granted unless ‘every person in actual possession’ of the land 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’ (rule 83.13(8) CPR).

In the case of Secretary of State for Defence v Nicholas [2015], it was held that ‘notice of the proceedings’ meant that the occupier must be served with the application for permission to issue the writ of possession. In practice, this meant that a tenant would be granted the opportunity to formally oppose the application and request a hearing for the application, which would cause further delays for the landlord and an increase in costs.

Partridge v Gupta (2017)

In the case of Partridge v Gupta, Mr Gupta (the landlord) successfully obtained a possession order requiring Mr Partridge (the tenant) to vacate the premises. Mr Partridge had defended those proceedings but was ultimately unsuccessful. As a result, Mr Gupta instructed a High Court Enforcement Officer to transfer the proceedings to the High Court and apply for a writ of possession with a view to prompt execution.

The proceedings were duly transferred to the High Court and the High Court Enforcement Officer issued a ‘without notice’ application to obtain a writ of possession, which meant that the application was not formally served on Mr Partridge. The writ was granted on 8 July 2016 and executed a few days later on 12 July 2016.

Mr Partridge attempted to set aside the writ of possession on the basis that he did not receive formal notice of the proceedings pursuant to rule 83.13(8) CPR and in accordance with the case of Nicholas [2015]. When his application to set aside was dismissed, Mr Partridge appealed the decision and the matter was referred to the Queen’s Bench Division of the High Court for consideration.

Whilst Mr Partridge argued that he ought to have been given formal notice of the application for a writ of possession, he accepted that he had been informed about Mr Gupta’s intention to apply for the writ of possession and that he knew that the claim had been transferred to the High Court for enforcement.

Justice Foskett dismissed Mr Partridge’s appeal. In particular, it stated that the rule did not require formal notice of the application for permission to issue the writ of possession. He stated that, whilst each case would turn on its own facts, it was generally sufficient for a more informal notice by letter or other communication that the application will be heard on a particular day or at a particular time. It was found that Mr Partridge had sufficient knowledge to enable him to apply for any relief that he may have been entitled. In the event, Mr Partridge did not apply for any relief and the writ of possession was valid.

Conclusion

The decision in the above case doubtless provides helpful guidance to landlords who are seeking to expedite the enforcement process in possession claims.

Anastasia Mavroudis is a Solicitor in our Dispute Resolution team.

If you are looking for assistance with regard to a property dispute matter, please contact one of our expert team on propertyexpert@bishopandsewell.co.uk or call 020 7631 4141.

 


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