An eviction is considered the final step in the re-possession litigation and enforcement process.

In a recent matter Ascent dealt with involving a mortgage and the proprietor of the property the Claimant was successful in carrying out an eviction in England & Wales without notice having been provided to the proprietor.

BACKGROUND

The lender issued possession proceedings due to arrears which had accrued upon the mortgage account. The lender was successful in obtaining an order for possession and, when allowed, commenced enforcement steps.

On the date of the eviction, the County Court Bailiff was met with a home which had been turned into a property of ill repute and also included a gentleman who was residing at the property with a pre-trial tag attached to his ankle.

Due to the challenges faced, safety concerns to the bailiff and the individual on tag the eviction was stood down.

PROCEDURE

Where the first attempt to execute a possession warrant has failed as the bailiff was forced to withdraw due to unrest by the defendant(s), or those in support of the defendant, the court should reschedule the possession.

The Civil Procedure Rule Committee has recently agreed an amendment to Part 83 of the rules, in relation to a further notice of eviction being delivered if the full eviction did not take place.

Civil Procedure Rule 83.8A(2) says:

Subject to sub-rule (5) which enables the court to dispense with a notice of eviction or to shorten or extend the time periods (and subject to section 89 of the Housing Act 1980); Page 10 of 14 Version 11 – December 2021

A notice of eviction must be delivered to the premises not less than 14 days before the writ or warrant is executed;

If full execution of the writ or warrant has not taken place on the day specified in a notice of eviction delivered pursuant to sub paragraph (a) relating to the writ or warrant, a further notice of eviction must be delivered to the premises not less than 7 days before the writ or warrant is or is further executed.

Bailiffs should also be aware:

• The provision for a further 7 days’ notice applies in the case where an initial attendance (for which the first (14 days) notice was given) has only secured a partial eviction.
• Practice direction PD 83.8A(6) states that the notice of eviction required must be in form N54. You should only use an N54A to reschedule an eviction involving trespassers or where a judge has ordered that a bailiff may now re attend at any time without notice to the defendant.
• It is also important to remember that Rule 83.8A does not apply to writs or warrants of possession to enforce possession orders against trespassers, other than possession orders against persons who entered or remained on the premises with the consent of a person who, at the time consent was given, had an immediate right to possession of the premises. The usual rules apply for trespassers and so no notice period is required before taking possession, as long as 24 hours has passed since the Respondent received notice that an order for possession was made.

ASCENT COMMENT

The changes to allow a without notice eviction to take place in England & Wales via application to the Court is an important step. In the current communications age we are living through, many defendants are turning to the internet to find ways to frustrate lawful processes – such as evictions. It is not uncommon for bailiffs to attend an on notice eviction and be met with large groups of people who will obstruct the bailiff in carrying out their duties.

In this particular case example such steps allowed for a successful conclusion. The bailiff was able to attend at a time when the property had all but been vacated and, with the assistance of the local police, were able to carry out the eviction peacefully. You may ask how could the bailiff remove the individual who was tagged? The tag was a pre-trial tag and therefore not a punitive measure following a trial. He was therefore able to be removed in line with the bailiff’s powers.

- Andrew Beck and Zarvin Vandrewala