Enforcement of mortgage possession order by eviction

Enforcement agents enforce possession warrants after the lender has applied to court and served a notice of eviction on occupiers.

This content applies to England & Wales

Procedure and permission of the court

The lender can seek to enforce a possession order using enforcement agents to undertake an eviction. 

The lender may apply to the County Court to issue a warrant of possession if the borrower:

  • fails to comply with an outright possession order requiring them to leave the property on the date set by the court

  • has breached a term of a suspended possession order

In some cases the lender may be able to apply for a writ of possession in the High Court. Amendments to section 126 Consumer Credit Act 1974 suggest that lenders of Regulated Mortgage Contracts must enforce agreements in the County Court only. 

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

Permission of the court not required

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

Permission of the court required

The permission of the court is always required when six or more years have elapsed since the possession order was made or if the mortgage has been assigned to another lender since the possession order was made.[2]

Notice of execution of possession order

The lender must serve a notice of execution of possession order at the property when the warrant is applied for. The warrant may not 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.[3]

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

Enforcement

The warrant of possession is enforced by certificated enforcement agents. They will visit or send a letter to the property to inform the borrower (and any other occupier) of the date and time of the eviction as applicable. It may still be possible to suspend the warrant and prevent repossession, see Changing court orders in mortgage possession proceedings.

Whoever is in occupation of the property may leave before the execution of the warrant. If the borrower or any other occupiers are still in the property when the enforcement agents arrive, they will be evicted, the locks will be changed and the property will be made secure. Enforcement agents with a warrant of possession have the right to force entry to the property if necessary.

A County Court held that a warrant was not executed until the bailiff had fully secured the property and the claimant had quiet possession.[4] County Court decisions are persuasive but not binding.

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. If the 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.[5] 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'.[6]

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 they should collect their belongings within a certain period after which the belongings will be disposed of.

Last updated: 22 March 2021

Footnotes

  • [1]

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

  • [2]

    r.83.2(3)(a) Civil Procedure Rules 1998.

  • [3]

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

  • [4]

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

  • [5]

    s.1 Torts (Interference with Goods) Act 1977.

  • [6]

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