Order For Possession- but on what date?

#1
We received yesterday (16th June) an Order For Possession from the County Court, stating that a hearing took place on 2nd June and that the court orders the defendant to give us possession of the property and pay costs on or before 16th June. The Order itself was dated 5th June. Underneath it says 'Within 14 days of its being served, either party may apply for it to be set aside or varied'. We don't understand whether the tenant has 14 days from 5th June (the date on the Order) or 14 days from when he will have received the letter (which could have been as late as yesterday which is when we got our copy). Or, does it simply mean that if we have not heard anything by the date that he was meant to have given us possession (16th) then we can proceed to ask the court to get the bailiff to evict him? In terms of this last stage, what is the procedure for authorising the bailiff (and costs?). Also, how do we take steps to enforce payment of the money owed? Many thanks.
 

Jeffrey Shaw

Member
Staff member
#2
The date of the Order is not the date when it is served on T.
And the wording either party may apply for it to be set aside or varied has nothing to do with exactly when T must give up possession to you as L.

(For a more detailed reply, please await a post from Rebecca Brough)
 
#3
Thank you for your response, but I don't feel I am any further ahead in understanding what we're meant to do next. You say the date of the Order is not the date is was served. How then do we find out what date it was served? And how do we know what date he is meant to give up possession of the property to us if it's not the date on the Order? I really need to understand when are we able to start proceedings to authorise the bailiff to remove him - and if you could you point me in the direction of how we do this I would be extremely grateful. Many thanks again. I am having some medical treatment imminently and we really need to get our house back as I need somewhere to live near the hospital for the daily visits, so we really need to expedite this process. I would welcome any more detailed information.
 
#4
Hi Serena

Apologies for getting into this late - I have been away from the office for a couple of days. There are 2 issues here:

1. the date for possession - 16 June - if the tenant is still in the property now you can issue the Bailiff's warrant. There is a form on the court website N325 which you fill in and send to the court with your court fee of £110. The Bailiff will then set a date for the eviction and both you and the tenant will get notification of this.

2. the date for appeal - this is 14 days after service - so if the Court order was sent out on 5th June, you need to add on a couple of days for first class post and then the 14 days - meaning that the tenant can appeal it up to 21 June. However, in appealing the Order the tenant has to have good grounds that the Judge has made a wrong decision in law. It is very rare that the tenant will appeal - I certainly have never had it and often receive the Orders a couple of days before possession is due to be given. But the court have to set out the details of right to appeal.

In terms of getting the money back you have to either apply for an attachment of earnings order or apply for the Bailiff to seize possessions. You will however, need to know where the tenant is living in order to do this.
 
#5
Thank you Rebecca for your detailed response. Yes the tenant is still in the property, so we will proceed to complete the form you have indicated and return this to the Court. Do you know how long the process is likely to take (i.e. until he is actually out of the premises)? Someone had mentioned to me that there are 2 courses of action for authorising the Bailiffs - through the County Court, or through the High Court. Is one quicker than the other?

Regarding form N325, please could you advise what we need to fill in for Questions 4 and 5? Is 4A the £175 court costs for getting the Order for Possession? I'm not sure what the other parts refer to (although we haven;t incurred legal representation costs, so this would be left blank). Can we claim on here the new court fee of £110?

For Question 5, do we fill this in? If so, is the Date of judgment/order 2nd June (when hearing took place) or 5th June (the date on the Order we received)? We have not been given possession so I guess this section would be left blank? Do we have to 'describe the land'?

On the right hand side of the form, I have filled in the Claim Number, but not sure what to write above that after 'In The...' -- is this 'County Court at Bow'? And what would be the Fee Account No?

In the 'I certify that...' section it asks us to delete certain parts, but I'm not sure what, as it all seems relevant.

Sorry for so many questions! :)

In terms of applying for an attachment or earnings, or applying for the Bailiff to seize possessions - is this a separate form?

Thank you in advance for your help. It is very much appreciated.
 
#6
Hi Serena

I can tell you that the bailiff for Bow County Court is very busy and it can take a long time to execute the warrant - it might be an idea to ring the court and speak to the Bailiff and they can give you an idea, the last time we used them it took about 8-9 weeks (as opposed to 2-3 weeks in Nottingham). You can therefore instead of using this process instruct the High Court Sheriff - it does cost more but is quicker. We use a firm called Harrison Enforcement - they will transfer the matter to the High Court for enforcment and then deal with the eviction. I am unsure of their costs, there are also other companies on the internet.

If you still wish to go ahead with the county court bailiff let me know and I will answer all your other questions.
 
#7
Hi Rebecca,

Many thanks for your last message. After contacting Bow County Court, it would appear that it could take 8-10 weeks from receipt of the necessary paperwork.

Therefore we have decided to transfer to the High Court. I am now preparing the N293A form to send to Bow County Court, but I just have a few questions about its completion and I wondered if you might be able to help me with this.

Top left:
- I have entered the claimant's name (my husband)
- Underneath I have entered the name and address of the defendant
- Part 1 - I have entered the date that the judgment took place and the total amount of costs that the court has ordered the defendant to pay

...I'm not sure what to complete in the box 'Details of order for possession'?

Top right:
- In the 'County Court at Bow'
- I have filled in the Claim Number
- I have filled in my husband's name
- And filled in the defendant's name
- I will enter the date that the form is completed

...I'm not sure which box to tick in the section underneath 'Writ of Control' or 'Writ of Possession'?
- My husband will then sign and date the form

Part 2:
...Is this for the court to fill in?

Part 3:
....Is this also for the court to fill in? Does anything at all on this page need completing by us?

Is there anything else I need to send the court along with this form? Any other paperwork, or payment?

many thanks

Serena
 
#8
Hi Serena

I have not used this form before, but will do my best. In terms of details of order for possession - attach the possession order to the form. You tick that you want "Writ of Possession". Part 2 is for the Court to fill in, again part 3 is for the court.

Send the possession order with the form and there will be a court fee, I am not sure what it is the Court fee will be the Court office will be able to advise.
 
#9
Hi Rebecca,

I wonder if you can help. This refers back to the thread dated 18th June when you answered:

'2. the date for appeal - this is 14 days after service - so if the Court order was sent out on 5th June, you need to add on a couple of days for first class post and then the 14 days - meaning that the tenant can appeal it up to 21 June. However, in appealing the Order the tenant has to have good grounds that the Judge has made a wrong decision in law. It is very rare that the tenant will appeal - I certainly have never had it and often receive the Orders a couple of days before possession is due to be given. But the court have to set out the details of right to appeal.'

We have today received a General Form of Judgement or Order from the Court (N24) stating that upon reading the Defendant's application to set aside the order, dated 2 July, it is ordered that 1) The application is listed on 15th December...

In other words he has been granted a stay, and we now have to go to court.

We can't believe this has happened, as his application for the order to be set aside is dated well beyond the allowed time on the Possession Order.

Also, the reasons (as we can see on an enclosed copy of his application) are false, eg. he has stated that he was not served a Section 21 notice (we have already provided photographic evidence to the court that a bonafide section 21 notice was hand delivered through his door), 2) he has stated that the landlord has not protected his deposit in the correct way (we have proof that the letting agency have registered his deposit in the correct way and we have the reference number for this).

The order states that we have the right to apply to have this order set aside, varied or stayed. And that we must send documents to the court (together with an appropriate fee) to arrive within 7 days of service of this order.

We go on holiday tomorrow, so I am proposing to complete documents today and post tomorrow.

Do I use the same application form (N244)?
Can I state as one of my reasons that the court has made a mistake in accepting the application for the order to be stayed, as he applied 27 days after the Court order was sent?
I will again include evidence of the section 21 notice
I will also include info re the deposit
Is there a fee I need to enclose?

Is there anything else I should include to support our case? Should I request now, as he has done, that this be resolved via a hearing, but ask that this be made sooner since he is now in rent arrears and we risk losing 6 months rent if this is listed in December?

The annoying fact is, the tenant has signed up for another flat (in fact we have a copy of his signed tenancy agreement, and receipt that he has paid a deposit and first month's rent for another flat on 1st July). He does not need to reside in our property anymore - he is simply doing this out of spite, as he wants to make it as difficult as possible for us to reclaim our property. I'm not sure that this information will serve as useful 'evidence' to support our case for the order to be set aside?

Thanks.

Serena
 

Jeffrey Shaw

Member
Staff member
#10
Is T still in residence? If not, and assuming that T has a Statutory Periodic Tenancy, the 1988 Act will no longer apply at the end of the current period.
You see, the Act cannot apply- and no further SPT can arise under it- unless if T is still using the property as his only or principal home: s.1(1)(b) of Act.
 
#11
He is still in residence. He has been phoning us up asking for his rent to be waived for July as he says he had to sign on another flat to secure it, but that he can't move out yet as it is too inconvenient due to work commitments, Ramadan etc. As far as we know he hasn't moved out. He certainly hasn't returned the key to the lettings agent. However, he is the only signatory on the new AST (Assured Shorthold Tenancy) that he has signed at the other property... Does that put him in a position of having 2 principle homes?
 

Jeffrey Shaw

Member
Staff member
#14
Thanks. Aside from this point, are you able to advise at all on the points raised in my post re a counter-appeal? Thank you in advance...
No. My specialism is the conveyancing aspects; Rebecca Brough's is the litigation aspects.
So await her arrival or contact her (via the 'Start a conversation' feature) and ask her to post a reply here.
 
#16
Hi Serena

I hope you get this before you go on holiday (I was not in the office yesterday), yes use form N244a - there is a fee, £115.

Certainly put in the details that support that you have done everything correctly. Also put in about the rent arrears and the new tenancy. Do not put in anything about the Court getting it wrong in allowing his application late, this is for the Judge to make a decision on.

I would ask for it to be heard on a sooner date and point out that the longer it goes on the more the rent arrears will accrue and that you will have little or no chance of getting them back.

I hope this helps
 
#17
Hi Rebecca

I'm very grateful for your response to my queries. We actually missed your reply as had already left on holiday, so we had already submitted the N244 form to the court, along with all our supporting information, before leaving. Having returned late last night, however, we have found that the package was returned by the court as we had sent the incorrect court fee.

My quandary now is whether to re-submit the application (with the correct fee) asking for the hearing to be set aside, or whether this request is unlikely to be granted, given that we have also now received separately a letter from the court re-scheduling the hearing date from 15th December to 18th August.

In your experience, once a hearing has been granted to a tenant, is it unlikely to be set aside? If we submit our N244 form again, are we likely to simply 'lose' our £155 fee, as the judge will likely deem that the hearing should go ahead, so as to give both sides a fair chance of putting their side across?

Please may I also ask some advice re the hearing itself... I am assuming both claimant and defendant need to be present? What about our Lettings Agent, since it is they, rather than us, who have managed his tenancy, protected his deposit, issued the section 21 notice etc etc. Do we represent ourselves in such a hearing? Or is this now the time that we should really appoint a legal representative to get to grips with our case against the defendant?

Is there any basis upon which the defendant could be granted leave to remain in the property following the hearing?

Many thanks.

Serena
 

Jeffrey Shaw

Member
Staff member
#18
Is there any basis upon which the defendant could be granted leave to remain in the property following the hearing?
No, because of s.9 of the Act:

9(1). Subject to subsection (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy.
(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may:
(a) stay or suspend execution of the order, or
(b) postpone the date of possession,
for such period or periods as the court thinks just...
(6) This section does not apply if the court is satisfied that the landlord is entitled to possession of the dwelling-house:
(a) on any of the grounds in Part I of Schedule 2 to this Act; or
(b) by virtue of subsection (1) or subsection (4) of section 21 below.

So- on a s.21 hearing- the Court cannot adjourn, nor stay/suspend execution, nor postpone possession.
 
#19
Hi Jeffrey - so are you saying that if a hearing takes place... he can't 'win' i.e. be given leave to stay in the property? We'd be given permission to proceed with the possession order via the Bailiffs?
 

Jeffrey Shaw

Member
Staff member
#20
Hi Jeffrey - so are you saying that if a hearing takes place... he can't 'win' i.e. be given leave to stay in the property? We'd be given permission to proceed with the possession order via the Bailiffs?
Yes. If the Court "... is satisfied that the landlord is entitled to possession of the dwelling-house...", it has to make an immediate and binding Possession Order.
But whether T will actually leave then or whether you'll need bailiffs to remove him: who knows?