Claire Sandbrook Court Possession Order Enforcement, Court Orders for Possession
 
 

factsheet | transferring county court orders for possession

 
  • Is it possible to transfer an order for possession involving a residential tenant from the county court to the high court?
The simple answer is yes – and here is a step by step FACTSHEET on how to do it.
  • For the lawyers and advisors – 101 on the procedural rules allowing transfer?
As you may know possession proceedings are governed by Part 55 and Part 70 of the Civil Procedure Rules which deal with possession proceedings and the enforcement of judgments and orders. From April 2016 advisors should also refer to CPR Part 83.13 in relation to the requirements for notice to be given to tenants that a landlord intends to transfer a possession order to the High Court for enforcement.
  • How does a claimant take advantage of the High Court enforcement procedure?
Claimant landlords should include in their claim for possession a request for the order for possession to be transferred to the High Court for enforcement so that the landlord’s interest in the property can be returned to him or her as soon as possible. This is a step towards giving the claimant options to use HCEOs instead of county court bailiffs. This in turn reduces the potential for waiting times for the enforcement of a Warrant of Possession.
  • Will a judge agree to an order being made in the claim for possession?
The decision to make an order allowing a possession order to be enforced in the High Court is in the discretion of the judge. Our experience over 10 years of managing this transfer process is that judges will be persuaded to help a claimant landlord with this request in 9 out of 10 cases where the request is made in the claim form.

Judges have to balance the competing interests of the parties but if they can see that there is delay caused by the time taken to enforce a possession order using a Warrant of Possession which adversely affects the landlord’s rental income then the judge is likely to agree to exercise his or her discretion in favour of the claimant landlord. The "Magic Words" For Transfer We call them the "Magic Words" because we know they work. So to make the application, we recommend that in every Claim Form and Particulars of Claim which is filed in a County Court possession action, the following wording is included:

"AND the claimant intends to make an application for leave to have the matter transferred to the High Court pursuant to section 42 of the County Court Act 1984 for enforcement"

If the judge wants to know why the request is being made it is always worth checking in advance of the hearing the likely time it takes in that particular court for a Warrant of Possession to be enforced. A delay of more than 3 weeks in Greater London (6 weeks outside of Greater London or the M25) is a general rule of thumb on how to show that the claimant landlord will be out of pocket if the order is not made.
  • What to do next if permission is granted?
If an Order is made in the terms above (it may vary slightly but broadly it should follow our Magic Words) then upload your Order on our Transfer Your Possession Order form found at www.shergroup.net/enforcement. Alternatively you can send it or email it to us and we will do ALL the necessary paperwork to complete the transfer process. Court fees of £160 are required in advance to seal the court documents at the High Court. Shergroup doesn’t make a charge for managing the transfer of your possession order when you have the Magic Words! It's a FREE service.

We will contact you – usually within 7 days to arrange the eviction date. And that’s where the landlord saves money – we take days rather than weeks to enforce the possession order.
  • What if the "Magic Words" are not included in the claim for possession?
If you didn't know about the special wording in advance of hearing we recommend:
  • Updating your process for possession proceedings so that EVERY claim you make for possession has the wording – you may not need it – but at least you will have it in your claim form and particulars of claim
  • Contact the court where the eviction will be carried out to find out the time it will take to enforce a Warrant of Possession
  • Have that information available for the Court at any hearing
  • Calculate your loss of rent and tell the judge about this if he or she asks you about what would happen if you had to wait for a Warrant of Possession to be enforced
  • Use our Post Possession Order application to get an Order allowing you to transfer to the High Court for enforcement but budget in an extra £499 plus VAT and £160 High Court fees to see if this makes commercial sense
If you don't include the "Magic Words" in the claim form it is still possible to apply to the Court for an order AFTER your possession order has been made. BUT please be aware at this stage the judge is more likely to scrutinise your reasons for seeking an order and we find that the success rate in transferring to the High Court drops to about 5 out of 10 cases.

However these applications become important if a landlord is losing rental income on average of £350 in Greater London (or £170 outside of London). It doesn’t take long for a landlord to be out of pocket if it is going to take the Court 3 weeks or more to evict the tenant(s). Other reasons for delay might include a tenant who is wilfully damaging a property, or where a landlord needs to complete an important contractual obligation for sale or re-development.

We can offer you a service to make a Post Possession Order application at flat fee of £499 plus VAT which includes the £255 fee on making the application to the Court.
  • How can all this help landlords?
The whole point is to save claimant landlords losses in rental income. See our comparison table below on how it can make financial sense for a landlord to transfer the enforcement of a possession order to us rather than waiting for a county court bailiff to enforce a Warrant of Possession.



Obviously losses can increase if damage is being carried out to the property and there is evidence of dilapidations.

Alongside the question of finance, landlords will probably want to get on and rent out their properties again or stick to a contractual timetable for completion of a related transaction.
  • What if the district judge refuses to allow the request to transfer?
If the application to allow the proceedings to be transferred to the High Court for enforcement is refused by the District Judge, then unfortunately the landlord must issue a Warrant of Possession in the normal way and wait for the bailiff department of the local county court to set a date for the eviction.

Of course the money part of the judgment if over £600 can be transferred to the High Court for enforcement but this cannot involve any eviction action – only taking control of goods will be permissible.
  • How much does it cost?
 ENFORCING ORDER FOR POSSESSION WITH THE
"MAGIC WORDS"
WITHOUT THE
"MAGIC WORDS"
 Charge to Make Post Possession Order Application* 0.00 244.00
 Court Fees 160.00 415.00
 Eviction Charge* 499.00 499.00
 TOTAL COST 659.00 1158.00

*VAT is chargeable at the standard rate
 
 
 
 
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