by David Asker
14:15 PM, 8th July 2016, About 5 years ago
Thank you to all who took part in what turned out to be our most highly attended webinar ever.
With almost 600 registered, you can imagine there were many questions. We will answer these in a series of articles, starting here with part one.
Please clarify the difference between PF88 and PF89
Both of these forms are used as part of the process of obtaining a writ of possession.
The PF88 is the form requesting the issue of a writ of possession, and the PF89 is to request the issue of a combined writ of possession and writ of control (for the recovery of money, for example rent arrears).
Is the law and process the same in Wales as it is in England?
Yes, it is exactly the same.
Once we have applied to the County Court for the possession order, how do we get to the High Court?
Assuming you have not requested permission in the initial application, there are a number of steps. Below is the overview:
Step 1 – request leave to transfer using form N244 and submit to the County Court
Step 2 – permission to issue a writ of possession, also using form N244 and submit to the High Court
Step 3 – complete form PF92, the order for permission to issue the writ
Step 4 – request the issue of the writ using form PF88 (or PF89 if you applying for a combined writ of possession and control). This form can be submitted at the same time as the PF92
Step 5 – Form No.66 to request that the writ of possession be sealed
If you have requested permission and it has been granted you would need to miss out step 1 in the above and start from step 2.
As mentioned in the webinar, it is best to complete and submit steps 2 to 5 at the same time.
What should we put on the N244 to improve our chances of getting the County Court to transfer up the possession to the High Court?
We would suggest focussing on the loss of rental income and the risk of damage to the property caused by the delay in waiting for a County Court bailiff to attend. The delays differ around the country, but the recently published Ministry of Justice statistics show that the average wait from starting the possession claim and a County Court bailiff attending is 45 weeks.
We have found this wording to be effective:
“Following the possession order granted to [claimant], the tenant has not left the property by the date stipulated. The order states the right to ask the court, without further hearing, to authorise a High Court Enforcement Officer to evict the tenant. I have been advised by the court that the County Court Bailiffs will be unable to carry out the eviction before [date]. I therefore request that the Judge permit that the case be transferred without delay to High Court Enforcement Officers for enforcement purposes, as covered by Section 42 of the County Court Act 1984, to prevent further loss of rental income, which is currently over £X.”
If I get a possession order and the tenant then leaves the property, but has left his belongings, can I change the locks and take back the property there and then, or do I require bailiffs?
Yes, you currently need to get the possession order enforced by a County Court bailiff, even if the property has been abandoned.
However, the Housing and Planning Act 2016, approved by Parliament in May 2016, does have a procedure for a landlord to recover possession of a property which it believes has been abandoned without the time and expense of Court proceedings. However, the tenant will have the right to apply to have the tenancy reinstated.
However, you do have a responsibility to look after their possessions. The Torts (Interference with Goods) Act 1977 makes provision for abandoned goods under S12. The goods still remain the property of the tenant (referred to as the bailor) and the landlord (referred to as an involuntary bailee) has an obligation to take care of the goods and make reasonable attempts to trace the tenant to return the goods.
If the bailor breaks an arrangement to take delivery of the goods, or the landlord/bailee is unable to trace the former tenant/bailor, then the bailee is permitted to sell the goods, provided he gives notice and has taken reasonable steps to trace the bailor.
When there is additional time for the judge to consider the application for leave to transfer up the possession order to the High Court, how does this make the High Court route quicker?
Whilst the process of obtaining the High Court writ might take a little longer than a County Court warrant, High Court Enforcement Officers (HCEO) will commence the eviction process as soon as possible after the writ is sent to them.
In comparison, once the warrant is received, you may have to wait several weeks, even months in some areas, for the County Court bailiff to attend the property to evict. The latest Ministry of Justice statistics say that it is taking on average 45 weeks from claim to possession via County Court bailiffs.
Can you give more information on the Government guidance to local authorities telling them to stop advising clients to stay until eviction?
Housing minister Brandon Lewis wrote to local authorities, highlighting certain aspects of the Homelessness Code of Guidance:
– Housing authorities should not, in every case, insist upon a court order for possession and that no local authority should adopt a blanket policy in this respect
– If the landlord intends to seek possession and there would be no defence to an application for a possession order, then it is unlikely that it would be reasonable for the applicant to continue to occupy the accommodation
– Unless a local authority has very good reason to depart from the statutory guidance, then they should not be placing households in this position.
If you get permission to transfer up, are you still able to instruct a court bailiff if you choose?
No, if you have obtained permission to use an HCEO then under the guidance issued by HMCTS in February 2015 the County Court loses jurisdiction and it is passed to the High Court.
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