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Writs and Notice
Where there is a possession order in place, and the tenant does not vacate the property, the Landlord’s next step is to seek a warrant for possession either in the County Court where the possession order was made or, following an application to transfer, in the High Court for a Writ of Possession.
There have been a number of cases in recent months revolving around technical difficulties with the procedure adopted by some Landlords when applying to the High Court – requests have stayed and warrants overturned. There is a very specific procedure to be followed and deviation is unwise if likely to be picked up by the tenant.
A key element is that the tenant must be notified of the application for a Writ of Possession.
In the recent case of Partridge v Gupta matters commenced with a possession order being made in the County Court as a result of a claim for possession based on a S21 Notice. The tenant appealed the making of the Order but this was dismissed.
The Landlord decided to apply to transfer the case to the High Court; when he did so he also had the foresight to write to the tenant explaining that he was applying for the transfer and would be applying for the Writ once the case was transferred. In due course, the case was transferred and the Landlord then applied on a without notice basis for the Writ of Possession to be issued. The High Court issued the Writ.
The tenant applied to have the Writ set aside on the basis that he had not received notice of the application.
The Court looked at this and decided that for the purpose of CPR 83.13 the tenant had been given notice of the impending Writ. The basis for this decision was:
- That the tenant had fully participated in the County Court proceedings and when his appeal was dismissed he must have been aware that he needed to leave.
- The Landlord’s letter had set out his intention to make the application for a Writ.
The Court also gave some helpful guidelines on what would amount to notice by a Landlord, as follows:
- Giving ‘notice of proceedings’ does not require service of a formal application or notification of a specific date and time where an application will be heard.
- Where the tenant is the sole occupier and has full knowledge of the possession proceedings, a reminder of the terms of the Court Order, along with a request to relinquish possession following the terms of that order is normally sufficient.
- Where the tenant is a sole occupier and has not participated in the possession proceedings the letter should convey the terms of the court order, a request to relinquish possession and confirmation that a writ will be applied for if vacant possession is not given.
- Where there are other occupiers they should either be written to by name or, if this is not known, the letter should be addressed to ‘the occupiers’ letting them know that there is a possession order in place, the date by when they should remove themselves from the property and that if they fail to do so, that a Writ of Possession will be applied for.
- Where you are applying for possession, write to the tenant and any occupiers making them fully aware of the consequences of not leaving the property.
- Set out clearly what those consequences are, particularly around the likelihood that you will be seeking a further costs order against them if you have to apply for a Writ of Possession.
- Keep the tenant and other occupiers fully informed of the proceedings so they cannot subsequently claim that they were unaware and the writ should be set aside.
For further advice please contact our specialist housing team lawyers
Broadwalk House, Southernhay West, Exeter EX1 1UA
call: 01392 204515 or email: email@example.com