PainSmith Solicitors
Residential Possession Procedure
Many of our clients use our services to recover possession of residential property. This page is designed to help explain how the recovery process works.
Residential Possession Proceedings are governed by Part 55 of the Civil Procedure Rules and the associated Practice Direction. They are split into two types, Traditional and Accelerated Proceedings.
Traditional Proceedings
Traditional Possession Proceedings involves a hearing in front of a District (or sometimes a Circuit) Judge where you or an agent gives oral evidence on oath. Initially it is assumed that it is an undefended possession action and listed for a 5 minute hearing. Ordinarily this hearing should take place within 8 weeks of proceedings being issued.
Our overriding concern is to avoid a second hearing. We therefore recommend that any outstanding repairs, of which you have knowledge, are dealt with prior to the court hearing as soon as possible in order to reduce the Tenant’s chances of submitting a defence and/or counterclaim. When a Landlord lets a property to a Tenant he agrees that the Tenant will have quiet enjoyment of the property. Outstanding repairs could amount to a breach of contract, which will entitle the Tenant to claim a monetary sum in compensation. This sum could be offset against any arrears of rent.
Provided that the court agrees that the Landlord has grounds for possession the landlord will be entitled to a 14-day order for possession unless the Judge takes the view that the Tenant's circumstances are such that possession should be delayed. Possession cannot be delayed for more than 42 days unless the grounds for possession are discretionary.
In some cases the Court has discretion as to whether it should make an order for possession. In this case the Court could make either a postponed or a suspended order for possession, which will only be enforceable if the Tenant fails to comply with the terms of the suspension or postponement in some material way. Suspended or postponed possession orders usually provide for the payment of current rent on the agreed payment dates and clearance of any arrears by the expiry date of any fixed term, or if that term has expired within 3 months.
You should obtain at least an order for a fixed contribution towards your legal costs totalling £276.75. If a Defence is entered an assessed contribution towards your costs may be recoverable. Any contribution is unlikely to match the total you have expended.
If the Defendant raises a credible defence which we are not able to immediately counter the Court will probably issue directions (which will include a timetable) for the resolution of the dispute and set the matter down for a further hearing at some later date when there will be more time available. Further preparation will then be necessary, the extent of which will depend upon the Tenant’s defence and/or counterclaim. This preparation will be charged by us on the basis of time spent.
Accelerated Proceedings
Accelerated Proceedings can only be used where the tenant has a written Assured Shorthold Tenancy and has been served with a section 21 notice which has expired. It is a little quicker than the Traditional Procedure taking about 4-6 weeks from the issuing of proceedings to the making of a Possession Order.
Once proceedings have been issued the tenant has 14 days to enter a defence. The Court will then place all the papers before a Judge who will consider them. If he is satisfied that the papers are in order and that the tenant has raised no credible defence he will make a Possession Order giving the tenant 14 days to leave the property. If he is uncertain of some aspect of the case or the tenant has raised a potential defence then the Judge will direct that the matter should be listed for a hearing. Should such a hearing prove necessary then there will be additional costs and charges to prepare for the hearing and to instruct a barrister to represent you. If this situation arises we will give you an estimate of our fees and other costs in advance of the hearing.
Bailiff
If the occupier of the property refuses to leave once the Court has granted a Possession Order then it will be necessary to instruct the County Court Bailiff to evict him. In the case of squatters it is possible to transfer enforcement to the High Court and to instruct a High Court Enforcement Officer to evict. Only a County Court Bailiff or a High Court Enforcement Officer can enforce a Possession Order and remove the tenant from the property.The Bailiff charges a fee of £95.00 to evict the occupier. This is non-refundable as is our fee for instructing him. Once the Bailiff is instructed he will set a date and time for the eviction which will be approximately 4-6 weeks away. The Bailiff will inform the occupier that they are to be evicted at least 14 days in advance of the eviciton date. It is the responsibility of the landlord to ensure that an appropriate representative is available to meet the Bailiff at the property at the appropriate time. It will also be necessary to have a locksmith attend in order allow the Bailiff to access the property and to secure it afterwards.
A High Court Enforcement Officer is often quicker than the County Court Bailiff, hence his popularity in squatter actions, but he charges substantially higher fees.
Exceptional Hardship
In the defence form the tenant has the option to seek more time between the making of a Possesion Order and the date before which he must leave the property. In most cases the Court can only extend this period to a maximum of 42 days and only where the tenant will suffer exceptional hardship as a result of the eviction should it occur earlier.
If the tenant does seek more time the Court will usually list this request for a hearing and it will be possible to make representations on this. Generally the Court will only extend the time period in the most serious of cases as they are aware that if the occupier does not leave in accordance with the order there will be a further delay in any case before the Bailiff attends the property to finally remove them. Should such a hearing prove necessary then there will be further charges and fees in order to prepare for the hearing and to instruct a barrister to represent you. If such a hearing becomes necessary we will give you an estimate of the costs and charges in advance.
