by David Asker
13:24 PM, 18th August 2015, About 6 years ago 1
Following on from our popular webinar on the eviction of tenants from residential property, which we ran in partnership with Property118, we are pleased to bring you the answers to the remaining questions. I would like to thank Tim Briggs, director of LegalMentor, for answering questions on the process prior to the transfer up of the possession order.
At what point would you recommend making the application for leave in an accelerated possession?
If by the application for leave you mean an application to transfer to the High Court for enforcement, this can only be done after the date the tenant is due to vacate the property stated on the possession order. The logic of this is that the tenant should be given the opportunity to leave, usually within 14 days.
If you apply too early, the court will send back your application and, if you are unlucky, the court will also cheekily cash your cheque for the application fee.
Can you use High Court enforcement if you have been using Room License agreements?
Yes you can.
Can High Court enforcement be used for assured tenancies or is it just for AST?
High Court enforcement can be used for both.
What is the difference between Form N5 and N5b?
Form N5 is a traditional possession claim; it is also the claim generated by the Possession Claim Online system (‘PCOL’). Possession and a money judgment for any arrears can be requested, but it must be properly pleaded or you will encounter problems at court, delays of months and sometimes years, and increased costs.
Form N5B is an ‘accelerated claim’ used to get possession on the basis of a Section 21 Notice only, but without a county court judgment for any arrears. The ‘accelerated claim’ was called that when there was no internet, but some claims are certainly not ‘accelerated’ in terms of the time they take to be decided – it depends on the court.
With both of these methods, landlords and letting agents often make the mistake of thinking that if they just ‘fill out the form’ and have acted in good faith, the court will help them get possession. It won’t. Many judges are perfectly happy to strike out a claim that is not correctly pleaded, so beware of doing it all yourself. Make sure you are not the landlord who gives tenants on legal aid the opportunity to keep appealing the outcomes of hearings, so you end up paying QCs in the Supreme Court £10,000 a day just to argue a point of law, whilst your tenant lives in your property for free.
What happens if you make a request and the judge refuses it? Will you have to serve N5b/N5 again, i.e. resubmit to the courts and start the process again?
If you make a request for a transfer to the High Court for enforcement at a possession hearing and it gets refused, even though your possession claim is successful, a paper application can be made after the hearing. However, that application may take time to be dealt with, depending on the court. The option still remains to use County Court Bailiffs, but this will take longer, depending on the court.
Is the date I get for possession from court this date that I apply to transfer to the High Court if the tenant doesn’t leave?
Yes, but remember that possession is given the day after that date, so date your application the day after, even if you send it on that day. So if the possession order says possession ‘on or before 18th August 2015’, you must date your application from 19th August 2015.
You said that leave is not required to instruct an HCEO in cases of trespass. Does this include technical trespass after an order is obtained pursuant to a Notice to Quit?
There are all sorts of hidden variables in the question that make a detailed answer almost impossible. Basically there are different rules for residential and commercial buildings, with different rules for tenants, occupiers and trespassers.
The general rule of thumb is that if the court has been involved, and a court order has been obtained, the court stays involved because either (a) the law says you have to have a court order or (b) the police were not happy dealing with the eviction as a criminal matter under Section 144 of the Legal Aid, Punishment and Sentencing of Offenders Act 2012.
So broadly, if the court has already been involved, you will need to go back to the county court for a warrant or to apply for a transfer to the High Court and a writ of possession.
How can the court grant permission to transfer up the possession order to the High Court at the outset, i.e. in the cover letter when lodging the initial claim form seeking the possession order, when normally you can’t seek a warrant of possession until the order for possession has actually been breached, which the Court won’t know when it first gets the claim form?
You should try and include the request for leave on the application and should use a cover letter if there is no space. Remember you are not requesting ‘transfer up’ or a writ of possession; you are simply requesting enforcement leave within the possession order itself.
Is it possible to ask the court for permission to seek enforcement via HCEO at the hearing when the possession order is granted, for example on a forthwith basis?
Yes, in our experience requesting leave at the initial hearing has a higher success rate rather than applying retrospectively; but remember but it remains at the discretion of the judge.
On applying for permission to transfer up, the Judge told me to file a suitably worded draft order. Surely this is something he/the Court should write?
Sometimes the Judge will help, it depends on the Judge and (to be fair) how busy they are. Some judges still expect everyone to turn up to court with counsel (a barrister) or some other highly paid lawyer regardless of cost.
It is important that you or your representative always have the wording of the transfer ready in order to help the Judge – and make sure the request gets pleaded in the claim and witness statement, so you or your representative can always take the Judge to the relevant part of the particulars.
I often get asked by clients to what extent can a tenant defeat or challenge the taking of goods in the property – is there a generic response I can give?
Presumably you mean a writ of control – i.e. a High Court writ to seize goods to satisfy a debt that is now a court judgment. Unlike a writ of possession to evict tenants, with a writ of control the debtors will be given notice that the enforcement agents are coming to seize goods.
This is one reason why we prefer getting writs of possession with very tricky tenants, even when they owe huge arrears – the element of surprise makes it easier for the enforcement agent to evict them. Then an empty property allows the landlord to start getting income from rent as quickly as possible, stabilising his or her position financially, before thinking about chasing the debt.
But with a writ of control, within the week or so after a debtor has been alerted but before the writ gets enforced, debtors can sometimes make an application to court for the original judgment to be set aside, and the writ is stayed until the court has had a hearing to deal with the matter. This is more likely when the judgment has been made ‘in default’, or when you get a ‘Notice of Judgment Entered’ with a Money Claim Online (‘MCOL’).
How does the application to transfer up work in the case of an accelerated possession?
You have to make a separate application for the transfer to the High Court, once the date for the tenant to give up possession of the property has passed.
When serving a section 8 do I have to know the exact amount of rent due? Before the rent stopped being paid I sent letters offering to reduce the rent per month and asked that these were signed and returned but they weren’t. I sent these letters assuming the rent would be paid but didn’t state this in the letters. Have I made my application for eviction more difficult?
Assuming you are bringing the claim on grounds of rent arrears, as a general rule you have to know the exact amount of rent due. The court is going to find it difficult to make an order on the basis of rent arrears without being able to say what the rent arrears actually are.
The question is whether in this instance you have made your claim for possession more difficult; presumably there was no cut-off date for your offer to reduce the rent. It depends on whether your tenants are the type of tenants who will turn up to court with copies of your letters offering to reduce the rent in their hands, having now signed them, bringing them as ‘evidence’ that they were actually returned to you, signed.
Most likely the claim would be brought on the basis of the monthly rent as set out in the tenancy agreement, as the letter varying the contract and reducing the arrears were not returned to you signed by the tenants when you brought the claim. Another good strategy might be for an advocate to be ready to concede some arrears at court, then try to still get a mandatory or discretionary order for possession.
Please also see part 1 “Your eviction questions answered” CLICK HERE
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