Residential eviction webinar Q&A part 2
New streamlined procedures that make it easier for landlords to use a High Court Enforcement Officer (HCEO) to evict residential tenants came into force on 23rd August 2020.
We bring you the answers to your questions from our November residential eviction webinar (part 2), you can read part 1 of this Q&A here.
If you cannot recover any money and I want her to go bankrupt who pays for this? Do I have to pay, or does she do this on her own accord?
If you wish to make the debtor bankrupt, you will have to issue a bankruptcy petition and pay for this. The debt owed will have to be at least £5,000.
Once we get the court agreement that says that the individual must go, can we change the locks if they go out?
No, the proper possession procedure must be followed and possession gained by an authorised High Court Enforcement Officer (HCEO) under a writ of possession or a County Court Bailiff under a warrant of possession. Attempting the possession yourself puts you at risk of prosecution for criminal offence.
If the tenants do not have clear funds to pay any arrears, can attachment of earnings orders be on them indefinitely?
An attachment of earnings order (AEO) will be in place until the debt is cleared, unless the debtor leaves that employment, in which case you will have to apply for a new AEO.
It is worth noting that, once you have obtained an AEO, other forms of enforcement, including High Court, will no longer be available to you.
How do HCEOs deal with repossession when there are children present at the property?
The possession will take place as normal, provided there are adults present. If the enforcement agents have any concerns, they will involve social services, although this is more common in the case of eviction of trespassers than tenants.
If there are no adults present, the enforcement agents will wait until the adults return before enforcing the possession order. Possession is normally planned for a time of day when adults will be present.
Is there any major procedural difference where a possession order is against a debtor who is the owner, rather than a tenant?
The procedure for the enforcement is unchanged in principle, although the planning and risk assessment may have highlighted specific requirements depending on circumstances of individual cases.
The difference between possession of property from a tenant on behalf of a landlord and that of a mortgagor on behalf of a lender (mortgagee) is the requirement for leave to transfer up. Leave is not required to transfer up the possession order to the High Court where the claimant is the mortgagee.
Should it be made clear that in the case of an Accelerated Possession Order rent recovery is not possible because it is not an option under that process? Or are you able to try to recover the rent even though it is not covered by the order?
Rent is not recoverable under an accelerated possession order. If you wish to recover rent arrears, you will need to either use the standard possession route or apply separately for a County Court judgment (CCJ), which, provided it is for £600 or more, can then be transferred to the High Court for enforcement under a writ of control.
It can be difficult to recover rent arrears from residential tenants, as they may have few assets of value and struggling financially if they cannot afford to pay the rent, so we would suggest considering the likelihood of recovery before making a decision on how to proceed.
What if guarantor is not willing to pay the rent and we have a CCJ against him and he is still unreachable?
The starting point would be to undertake a trace to locate the guarantor. Once found, then you can transfer up the CCJ to the High Court for enforcement under a writ of control.
You may also apply to court to obtain an order for information for the guarantor to answer questions regarding his or her assets.
Would you advise including the name of any guarantor on any claim for possession or should that be done separately?
If you are adding a money order to the possession claim (for the recovery of rent guaranteed by the guarantor), then you should include the guarantor’s name.