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The eviction

This content applies to England & Wales

Enforcement of possession orders by court's bailiffs or enforcement officers.

Procedure and permission of the court

The lender can seek to enforce a possession order by requesting the county court to issue a warrant of possession if the borrower:

  • fails to comply with an outright possession order requiring her/him to leave the property on the date set by the court
  • has breached a term of a suspended possession order.

Alternatively, the lender can apply to transfer the proceedings to the High Court for enforcement of the possession order (through execution of a writ of possession).

See the Enforcement of possession orders section for more detailed information about warrants of possession and High Court enforcement.

The procedure to issue a warrant of possession/writ of possession is set out in Part 83 of the Civil Procedure Rules 1998 and Practice Direction 83. The permission of the court may be required before a warrant/writ will be granted.

Permission of the court not required

When an outright possession order has been made the lender does not have to apply for the permission of the court before applying for a warrant of possession/writ of possession.[1]

Permission of the court required

When the lender seeks a warrant of possession following the borrower’s breach of a suspended possession order s/he must first apply for, and obtain, the permission of the county court. The lender must provide the court with evidence that the borrower has not complied with the terms of the suspended possession order.[2] It is arguable that the lender may require the permission of the High Court when it seeks a writ of possession following the borrower’s breach of a suspended possession order.[3]

The permission of the court (either county court or High Court) is always required when six or more years have elapsed since the possession order was made. [4]

Notice of execution of possession order

The lender must serve a 'Notice of execution of Possession Order' at the property when the warrant or writ is applied for. No warrant or writ may be executed until 14 days after the notice is given.

The notice must be in the prescribed form and must be either personally served on any person who appears to be resident at the property or addressed to 'The Tenant or Occupier' (or by name, if known) and sent by first class or registered post or affixed to the property in a prominent place.[5]

Further information can be found in the DCLG guidance on the Mortgage Repossessions (Protection of Tenants etc) Act 2010.

Enforcement

The warrant/writ of possession is enforced by baillifs or enforcement officers. They will visit or send a letter to the property to inform the borrower (and/or any other occupier) of the date and time of the eviction as applicable (see Warrant of possession for more information about county court's bailiffs, or Writ of possession for more  information about High Court's enforcement officers). Even at this stage, it may be possible to suspend the warrant and prevent repossession (see Court hearings after initial order).

Whoever is in occupation of the property can leave before the execution of the warrant. If, however, the borrower (and/or any other occupier) is still in the property when the bailiffs or enforcement officers arrive, s/he will be evicted, the locks will be changed and the property will be made secure. Occupiers should be advised that bailiffs and enforcement officers with a warrant or writ of possession have the right to force entry to the property if necessary.

A county court (note that this is a non-binding decision) held that a warrant was not executed until the bailiff had fully secured the property and the claimant had 'quiet possession'.[6]

Chattels and goods left in the property

A borrower is usually required to deliver up vacant possession of the property on the execution of the warrant for possession. However, when a borrower leaves behind some personal belongings, the lender must not damage, destroy, sell or refuse to return them to the borrower because it will be liable for damages of wrongful interference with goods.[7] In such cases, the lender becomes an involuntary bailee of those belongings and will owe to the borrower a limited duty of care 'to do what is right and reasonable in the circumstances of the case'.[8] In most cases and subject to what the mortgage agreement provides, in order to discharge that duty the lender will only need to notify to the borrower that s/he should collect her/his belongings within a certain period after which the belongings will be disposed of.

[1] r.83.26 and r.83.13(6) Civil Procedure Rules 1998.

[2] r.83.2 Civil Procedure Rules 1998; Cardiff CC v Lee [2016] EWCA Civ 1034.

[3] following Cardiff CC v Lee [2016] EWCA Civ 1034.

[4] r.83.2(3)(a) Civil Procedure Rules 1998.

[5] s.2 Mortgage Repossessions (Protection of Tenants etc) Act 2010; Dwelling Houses (Execution of Possession Orders by Mortgagees) Regulations 2010 SI 2010/1809.

[6] Royal Bank of Scotland v Bray, Halifax County Court, 25 November 2011, Legal Action January 2012.

[7] s.1 Torts (Interference with Goods) Act 1977.

[8] Da Rocha-Afodu v Mortgage express Ltd [2014] EWCA Civ 454; Campbell v Redstone Mortgages Ltd [2014] EWHC 3081 (Ch).

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