Enforcement of possession orders by writs of possession in the High Court

As an alternative to enforcing a possession order by applying for a warrant of possession in the County Court, the landlord may apply to transfer the order to the High Court for enforcement by a High Court Enforcement Officer (HCEO). Enforcement in the High Court is usually quicker.

HCEOs are also referred to as enforcement agents, bailiffs or Sheriffs. They are private agents regulated by the High Court Enforcement Officers Association who operate under instructions received from the claimant landlord.

Between 17 November 2020 and 31 May 2021 there was a stay on enforcement of warrants and writs of possession, except in limited circumstances.

A possession order can be enforced in the High Court in two situations.

The first is when the possession hearing was in the High Court. This is unusual because if a landlord applies for a possession order in the High Court, it is transferred to the County Court unless there are exceptional circumstances, such as complicated disputes of fact or important points of law [1]

The most common reason for High Court enforcement is because the landlord has applied to the County Court to have the possession order transferred to the High Court for enforcement by an HCEO. [2]

The County Court judge has discretion whether to allow the transfer of enforcement to High Court. [3]

The landlord can request the transfer:

• during possession proceedings in the County Court

• after a possession order has been obtained, by making an application to the County Court.

From 20 September 2020, if the property is within the area of a District Registry and the landlord applies for a transfer to High Court, then, unless the County Court directs otherwise, the case will be transferred to the District Registry. [4]

When an application cannot be made

An application for a transfer cannot be made if there are outstanding applications from the tenant, such as an appeal against the possession order. [5]

If rent arrears together with any court costs total over £600, the landlord may also apply for a writ of control to recover the money owed. A writ of control provides for the seizure and sale of the debtor goods. This was previously known as, and is still commonly referred to, as a writ of fieri facias or writ of fi fa.

Interest, currently at the rate of 8 per cent, on the judgment debt for arrears will accrue from the moment of the transfer of the order.

Landlords are prohibited from applying for a writ of possession on the basis of rent arrears, during a breathing space moratorium.

The landlord must notify the court if the tenant is in a breathing space moratorium. The court must ensure that any proceedings to enforce an order concerning a moratorium debt does not progress during the moratorium period.

A landlord might ask for a transfer of the order to the High Court because:

• enforcement in High Court is usually quicker

• delays in County Court enforcement may result in increasing rent arrears, further damage to the property and/or anti-social behaviour

If money is owed, the writ of possession may include provision for enforcing the payment of any money adjudged or ordered to be paid by the order which is to be enforced by the writ.[6]

The tenant's reasons for opposing High Court enforcement could include:

• lack of evidence that County Court enforcement would cause a significant delay

• disproportionately high costs

• requiring more time to find somewhere else to live before eviction.

The tenant's particular circumstances, such as whether they have significant rent arrears or children, can be relevant factors in the court's decision.

If the landlord's application to transfer is granted by the County Court, the landlord must obtain the High Court’s permission before the writ of possession is issued, except in: [7]

• actions against trespassers

• mortgage repossession cases[8]

• cases where a suspended possession order for non-payment of rent is breached. [9]

When permission to enforce a possession order in the High Court is sought, the landlord must give notice of the application to 'every person in actual possession' of the property. The High Court must not grant permission unless each tenant is given such notice as the Court considers sufficient. [10]

There is no requirement to give notice in any particular form. What is sufficient notice will depend on the facts of the case. Where a sole tenant was aware that the case had been transferred to the High Court, a reminder from the landlord of the terms of the court order and a request that to give up possession could be sufficient notice. [11]

A writ of possession can be set aside even after its execution if the landlord fails to: [12]

• give sufficient notice

• provide full information to the court about pending applications or appeals against the possession proceedings.

High Court practice note on HCEOs

Some HCEOs had tried to circumvent the correct procedure by applying directly to the High Court to take over the matter under section 41 of the County Court Act 1984, or by using Form N293A inappropriately against tenants, rather than trespassers. On 21 March 2016, the Senior Master of the High Court issued a practice note to ensure that these malpractices stop.

From 20 September 2020, a notice of eviction must be delivered to the premises at least 14 days before the eviction date, unless the court dispenses with this requirement. [13] 

The notice of eviction must be:[14]

• addressed to all persons named on the possession order and 'any other occupiers'

• inserted through the letter box in a sealed transparent envelope or, if this is not practicable, attached to the main door or some other part of the land so that it is clearly visible, or, if this is not practicable, attached in a sealed transparent envelope to stakes in the land in places where they are clearly visible.

The notice must be delivered to the premises 14 days before the eviction date, unless the court:

• dispenses with the requirement to serve a notice of eviction

• extends or shortens the time by which a notice of eviction must be delivered.

The notice requirement does not apply to action against trespassers who have never had permission to enter or occupy the premises.

From 7 August 2021 if an eviction does not take place on the date specified on the notice, a further notice of eviction must be delivered to the premises at least 7 days before the new eviction date.[15]

Before 23 August 2020 HCEOs did not have to notify the tenants in advance about the eviction date, [16] although some HCEOs did drop off the writ and return a day or two later. Before 23 August 2020, seven days' notice was required only if a HCEO was seeking to seize goods and money as well as recover possession of the property. [17]

The High Court has the power to stay or set aside a writ of possession, or writ of control. [18] Applications to the High Court should be made on form N244.

The application should be supported by evidence. The evidence can be included on the form, or by witness statement. A fee is payable, and applications should be made with notice of at least three clear days. Where an application is made with less than three clear days the court may agree to a shorter time.[19]

If the stay or set aside is granted it is important that, where possible, the tenant informs the HCEO of this fact as the High Court may not have informed the HCEO.

An application relating to the possession order, such as to set aside or vary the original possession order, must be made to the County Court.

HCEOs are commercial agencies authorised by the High Court and not employees of the court. The Directory of High Court Enforcement Officers contains the names of enforcement officers in England and Wales who have been authorised to execute High Court writs.

Standards and conduct

HCEOs subscribe to a code of practice.

A writ of possession must not be executed on a Sunday, Good Friday or Christmas Day, unless the court orders otherwise. [20]

With effect from 6 April 2014, regulations govern the actions of HCEOs, and all other bailiffs, when seizing goods. [21] The regulations include the requirements that the HCEO must not:

• enter residential property before 6am or after 9pm, unless the court has authorised this

• enter if the only person present is a child aged under 16

• take essential household goods such as a cooker, fridge or washing machine.