Blog: Possession and enforcement

A raft of new rules have been introduced following the reopening of the courts, from how to reactivate proceedings to enforcing possession. NRLA senior policy officer James Wood takes us through the changes.

New rules and best practice

When the courts were closed in March this year, it didn’t just prevent landlords from starting new applications for possession orders. 

Bailiffs and high court enforcement officers also stopped enforcing orders that existed prior to coronavirus even if it was for significant arrears or anti-social behaviour. 

As possession typically took six to eight months before the pandemic, a number of landlords will now have been waiting for over a year to regain their property. For these landlords, the end is now in sight. 

With the courts reopening this week, landlords in England and Wales are once again able to regain possession when necessary with bailiffs and high court enforcement officers free to enforce possession orders again. 

However, landlords will need to be aware of some new rules and best practice about the way bailiffs and high court enforcement officers operate.

The NRLA has produced a guide for members on reactivating possession proceedings.

On Thursday 17th September, new ‘golden rules’ to sustain tenancies in the rental housing market were published ahead of the courts beginning to hear possession cases from the 21st September.

The rules, drafted by the NRLA, form a central part of measures announced by the Government to ensure courts can start to process possession cases following a six-month ban.

Is a reactivation notice required if I have already applied for a bailiff?

To reactivate an ongoing possession claim, landlords who applied to court before August 3rd 2020 need to serve a reactivation notice. 

This is not the case for bailiff applications and, in theory, landlords won’t need to contact the court to reschedule or confirm a date for a bailiff. The Government guidance for landlords reflects this, asking landlords to contact the courts if they no longer need the services of a bailiff.

In practice however, landlords are probably best contacting the bailiffs just to ensure they do not get lost in the system. 

How will cases be prioritised?

As with the reopening of the courts, landlords should temper their expectations about how quickly they might regain possession. With a six-month backlog of cases and less than 300 bailiffs operating full time across England and Wales, priority will have to be given to the most serious possession cases.

To account for this, bailiffs will schedule enforcement based on the priority of need and the order in which the application was made. This will likely mean that cases of serious anti-social behaviour or extreme rent arrears will be heard first followed by outstanding warrants from pre-lockdown.

What happens if my local area goes back into lockdown/has restrictions placed on it?

This will depend on the nature of the restrictions placed on your local area. Where the restrictions prevent people entering someone else’s home, then bailiffs will not be able to enter the property to enforce a warrant.

Will bailiffs be operating over the Christmas period?

Except in the most serious cases such as anti-social behaviour, bailiffs will not be enforcing warrants in the weeks around Christmas. This will cover a four-week period from December 11-January 11.

Can I use a high court enforcement officer instead?

Given the lengthy delays landlords are likely to face, using a high court enforcement officer (HCEO) may seem appealing. As HCEOs are privatised, this route tends to be significantly faster but also quite a bit more expensive.

If you do wish to use a HCEO, to enforce judgement then you should be aware that the process has changed during the possession ban. 

Previously, landlords needed to notify their tenants that they were transferring the case up to the High Court. Afterwards, the HCEO could enforce without serving any notice at all on the tenant.

This has now switched around. The landlord no longer needs to notify the tenant if they intend to transfer up to the High Court, but the HCEO must give the tenant 14 days’ notice of repossession prior to arriving at the property. This change is a permanent one and not a temporary change due to coronavirus.

How can I apply to use a HCEO?

A HCEO can’t enforce a warrant for possession. Instead, the order will need to be transferred up to the High Court so that a writ can be issued instead. This needs the permission of a judge in the county court first.

To do this you can either ask for it to be dealt with at the hearing if you have not yet had your possession order. Alternatively, you will need to pay £100 for an application under Section 42 of the County Court Act 1984 for permission, a further £100 for it to be transferred, and £66 for the writ to be sealed. Typically a HCEO you choose to use will be more than happy to fill these forms out for you for a fee.