by David Asker
11:39 AM, 30th August 2017, About 5 years ago
There has been an appeal going through the courts regarding the notice requirements to residential tenants when landlords apply for a writ of possession to evict.
CPR 83.13 – sufficient notice
The appeal – Partridge v Gupta – centred around the definition of “sufficient” with regards to notice in CPR 83.13. This states that, where permission is required to issue a High Court writ of possession:
“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”
Partridge v Gupta
Permission to transfer under section 42 of the County Courts Act 1984 was required in this case (it is not normally required for writs of possession against trespassers or mortgage repossessions). Mr. Partridge had received notice of the possession order, the transfer to the High Court and the intention to apply for a writ.
Notice of the application to transfer up and apply for the writ was sent by the instructed High Court Enforcement Officer (HCEO) to both “the occupiers” and to Mr. Partridge and 1 other. This notice also invited him to contact them with any questions regarding the “impending eviction”.
Mr. Partridge’s appeal was based on an earlier decision, Secretary of State for Defence v Nicholas (2015) which held that “notice of the proceedings” meant that an occupier was entitled to notice of the application for permission to issue the writ.
The decision to dismiss
The Master dismissed his application, so he appealed to a High Court Judge, who also dismissed the appeal, because the rule does not require a specific form of notice, only that the occupier was informed enough to be able to apply for relief.
He ruled that Mr. Partridge was aware of proceedings and the intention to apply to transfer the order and apply for a writ, particularly with the inclusion of the words “pending eviction” in the notice. He said that Nicholas was a decision on its own facts.
If we have not been asked to do so, we will ensure that the client has served the defendant and all occupants of the property with the following once permission to transfer has been granted:
Copy of the Form 244, the application of permission to issue the writ
Provide a copy of the possession order
Provide a copy of the order under s.42 granting leave to transfer
We then obtain or complete a form N215 declaration of service or witness statement.
Our next step is to apply for the writ of possession, following the laid-out procedure. Once we receive the writ, we send notice of possession to the defendant, giving at least 7 clear days’ notice.
We believe that this dual approach not only provides the defendant with time to apply for relief, but also to prepare for the eviction.