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Having the county court issue a warrant of possession is an alternative to enforcing a possession order and the landlord in Cheshire needs to apply to transfer the order to the High Court for enforcement by a High Court Enforcement Officer (HCEO).
Enforcement agents, certificated bailiffs or sheriffs are also common names for HCEOs in Cheshire.
The High Court can impose a possession order in Chester, Crewe, or Ellesmere Port if:
The hearing was held at the High Court in Cheshire, this is unusual because if a landlord in Cheshire applies in the High Court for a possession order, it will be transferred to the county court unless there are exceptional circumstances, such as complicated factual disputes or significant legal issues.
When the Cheshire landlord applies to the county court seeking to transfer the possession order to the High Court for onward enforcement by the High Court Enforcement Officer (HCEO).
The county court judge has the authority to decide whether the enforcement in Chester, Ellesmere Port, or Crewe should be transferred to High Court or not.
The Cheshire landlord can plead during the county court possession hearing that if the court awards judgement in his favour, it should transfer the enforcement to the High Court.
The Cheshire landlord will need to apply to the county court requesting that the possession order be transferred to the High Court for enforcement purposes after a possession order has been obtained.
The landlord can't make the application if there are outstanding issues such as if the tenant in Cheshire has appealed against the order.
If the court costs and other arrears make up over £600, it is at the discretion of the landlord to apply for a writ of control in order to recover the outstanding money in Ellesmere Port, Chester, or Crewe.
With a writ of control, the tenant's goods can be seized and sold in Cheshire, this is otherwise known as the writ of fi fa or writ of fiery facias.
However, the debt cannot be transferred to the High Court if the debt or rent arrears are regulated by the Consumer Act 1974 (CCA), that is because agreements regulated by the CCA can only be enforced in the Cheshire county court.
The reasons why a property owner in Cheshire might seek to transfer the order to the High Court for enforcement include that:
The implementation in Cheshire is usually quicker when handled by HCEOs as compared to county court sheriffs
High losses resulting from unpaid rent due to sluggishness in implementation through the regional court bailiffs in Cheshire
To prevent any further dismantlement to the premises in Cheshire or behaviour that is antisocial
HCEO has the right to enforce the possession order as well as seizing the goods in Cheshire if there is any pending rent
From the time of transfer, interest at a rate of 8% will be added to the judgement debt.
HCEOs offer faster eviction speed in Cheshire and are more expensive than the bailiffs in County Court in Cheshire, thus, a tenant may not be comfortable with the transfer arrangement and kick against it for a wide range of reasons.
The tenant's causes can be:
The landlord did not provide proof that the use of county court bailiffs in Cheshire would be substantially affected
The costs involved are not proportionate
S/he needs the extra time to find somewhere else to live in Crewe, Ellesmere Port, or Chester before an eviction is endorsed
The common factors of tenants that are classed as exceptional situations that court in Cheshire might consider are overdue rent, children or any relevant factors.
If County Court in Cheshire grants the application of landlord to transfer to High Court, the landlord needs to get the high court permission before the issuance of the writ of possession, except in:
Furthermore, the permission required before serving warrant of possession is not necessary when there is a violation of order of possession including suspension orders in which violation includes non payment of money in Cheshire.
If permission is sought in the High Court to enforce a possession order (i.e., except in cases of mortgage repossession and actions against trespassers), the landlord in Chester, Crewe, or Ellesmere Port must notify every person in real possession of the property of the application.
The permission from high court cannot be granted until every tenant in Cheshire receives notification and court finds it satisfactory.
There are no specific instructions about what constitutes acceptable notice in Cheshire.
Sufficient proof depends on the facts of the case.
In the event that a tenant in Cheshire who had a case that had been transferred to the High Court was aware, a reminder from the property owner of the terms of the court order and a request that possession is considered to be sufficient notice.
Failure to provide enough notice or correct and complete information regarding pending applications or court appeals against the proceedings can cause the writ of possession to be set aside after it's execution in Cheshire.
Some HCEOs in Cheshire try to take over the matter under section 41 of the County Court Act 1984 by applying directly to the High Court or by inappropriately using Form N293A (i.e., against tenants instead of trespassers) to circumvent the correct procedure.
So, in order to prevent such malpractices, High Court's Senior Master issued a practice note on 21 March 2016.
Compared to using county bailiffs, enforcing a possession order in Cheshire by HCEOs is faster.
The HCEO can execute the writ of possession right after a few days of expiry of the notice of the landlord's application for permission to the High court, or when the writ of possession is issued in Chester, Ellesmere Port, or Crewe.
The HCEO is not expected to notify the tenants earlier of their visit in Cheshire about when they will be administering the writ of possession, although is normal for them to drop off the writ and return after 1 or two days.
Where a HCEO is planning to seize good and money as well as repossess the property in Cheshire, they must prove the tenant /creditor with a 7 days' notice.
The High Court in Cheshire has the mandate to set aside or delay a possession writ, or control writ.
Form N244 should be used to make an application to the High Court.
So, it is the responsibility of the tenant in Cheshire to inform HCEO if the stay is set aside or issued as the High court may not inform them.
Otherwise, other applications, including setting aside the original possession order must be made to the Cheshire county court.
HCEO's in Cheshire are not employed by court; however, they serve as business agencies mandated by high court.
You can look at the Directory of High Court Enforcement Officers to see who is authorised to proceed with High Court writs in England and Wales.
As a standard HCEOs subscribe to a code of practice.
A possession writ shall not be executed on a Sunday, Good Friday or Christmas Day in Cheshire, unless otherwise ordered by the court.
The actions of all other bailiffs and the HCEOs when goods are seized in Cheshire are in effect from 6 April 2014.
The rules include the requirements that the HCEO must not:
Gain access to a Cheshire residential property before 6am or past 9pm, unless authorised by the court
Go inside the building in Cheshire in case the person within is a child below the age of 16 years
Take essential household goods like washing machine, fridge or cooker
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