Bailiffs v HCEO – is reform needed? It is vital that landlords carefully follow the correct legal process to recover possession of their property. Especially where voluntary surrender is not an option. In the first instance, the landlord or agent acting on behalf of the landlord must serve a valid possession notice. If the tenant(s) does not vacate the property following the notice period expiring, the next step is to issue court proceedings to pursue a possession order.
If accelerated proceedings are issued, then a possession order is typically awarded on the paperwork alone. However, if standard proceedings are issued, then a possession order is awarded following a hearing. If a possession order is awarded – it will set out a specified date when the tenant(s) must return vacant possession.
If the tenant(s) does not return vacant possession in accordance with the possession order, the landlord will be advised one of two things. Either to instruct a High Court enforcement officer or a County Court bailiff to gain physical and legal possession. The final step in the possession procedure.
Theoretically, High Court enforcement has always been the faster route to obtain possession of your property. Which proved particularly useful where a tenant is thought to be damaging the property or owes significant amounts of rent. However, it is our experience that this has changed significantly following the covid-19 pandemic. Therefore further thought is required before instructing High Court enforcement officer or a County Court bailiff to recover possession of the property.
What is the difference between a County Court bailiff and High Court enforcement officer?
A key difference between the County Court bailiff and a High Court enforcement officer is that permission from the court is required to transfer the order to the High Court to be able to instruct a high court enforcement officer.
An application requesting permission to transfer the order to the High Court can be made at any scheduled hearing. But a picky judge may require a formal application notice (N244 Form). They may want this to be filed at court ahead of the hearing setting out why permission should be granted. It will be entirely at the court’s discretion whether permission to transfer the order to the High Court. And it will often depend on whether there is any particular reason why possession is needed quicker under High Court enforcement. Such as significant rent arrears or anti-social behaviour etc. Frustratingly, the courts approach varies considerably between different courts. And it can often be challenging to gain the courts permission as it typically depends on the judge’s own viewpoints.
If permission is granted by the court, the next stage is to apply for a writ of possession.
The timescales will depend on the location of the rental property address. If the rental property is located near the main High Court (Royal Courts of Justice) – the estimated timescales to reach the eviction date is 3 to 5 weeks. However, if the rental property is located near a High Court district registry – the estimated timescales will depend on the caseload at that particular court. But it could be significantly longer compared to Royals Courts of Justice timescales.
Although it will depend on the caseload at the County Court handling the possession case, the estimated timescales to reach the eviction date for County Court bailiff is around 4 to 10 weeks. As no permission is required to instruct bailiffs.
With both County Court bailiffs and High Court Enforcement officer, legislation requires that at least 14 days’ notice of the eviction date is given to the tenant.
During the covid-19 pandemic, we noticed that many landlords were pursuing High Court enforcement to try to recover possession as quickly as possible. As more landlords pursued High Court enforcement, this in turn increased their caseload and delays for the High Court.
To assist the High Court and to shut the floodgate, we also noticed that many judges applied a stricter approach when considering whether to grant permission to transfer the order to the High Court. Although some judges have relaxed their approach and the Royal Courts of Justice has seemly recovered from the increased caseload during the pandemic, it is my opinion that some High Court districts are still struggling to cope. With the increase caseload causing delays, some judges still apply a stricter approach when deciding whether to grant permission.
What about the costs?
If a formal application is to be filed to the court to request permission to transfer the order to the High Court – the court fee is either £108 or £275 depending on the court. If permission is granted, the court fee to issue a writ for possession is £179. There will also be further costs to instruct High Court enforcement officers. And if you instruct a third party to prepare the application and/or request for a writ for possession. The costs to instruct High Court enforcement officers can be between £500 to £900. Depending on certain circumstances regarding the property and the eviction.
For County Court bailiffs, the court fee to issue a warrant for possession is £130. There are no additional costs to instruct bailiffs, but there may be further costs to instruct a third party to prepare the request for warrant for possession on your behalf.
The landlord will also be required to incur costs to instruct a locksmith. They will need to attend the eviction appointment to secure the property after recovering possession.
What is the best option?
To answer this question, the landlord must consider several factors. The first is where the rental property is located. And, if the Royal Courts of Justice or a High Court district will process the writ of possession.
The second factor is whether the landlord believes there is sufficient reason to persuade the judge why High Court enforcement is needed. As opposed to a County Court bailiff. Again, the court will be eager to avoid the High Court becoming overwhelmed with new cases.
The third and final factor relates to the cost. As discussed above, the cost relating to High Court enforcement is significantly higher compared to County Court enforcement. However, if permission is granted and the route proves faster, where there are rent arrears continuing to accrue, it usually proves to be a financially beneficial option.
If the landlord is unsure whether to pursue High Court enforcement? It may be advisable to file an application requesting permission to transfer the order to the High Court. If permission is granted and possession order awarded, then the landlord will have a choice whether to pursue High Court enforcement or County Court bailiff. If permission is not granted but possession order awarded, the landlord will be required to pursue County Court bailiff to recover possession.
Is reform needed?
Both options feel unfairly slow. Particularly, when landlords have had to go through a lengthy court process to obtain an order for possession. The reforms proposed by the current government have promised reform of the court system. With particular attention being paid to areas of unacceptable delay – access to county court bailiffs being one of them.
We strongly support this reform. But, there is currently a lot of work to be done to bring the bailiff wait times down.
With this in mind, it is imperative that the landlords ensure their paperwork is in order. Before submitting a claim for possession to avoid any further an unnecessary delays.
If you need any assistance recovering possession of the property, please do not hesitate to contact Woodstock Legal Services. We are more than happy to assist.
