Residential repossession using Section 42
by Michael Aynsley on 19 October 2011
With the increasing workload pressures placed on County Court Bailiffs (CCBs), undoubtedly exacerbated by the continuing magistrate and county court closures, we hear stories of CCBs regularly taking three months, sometimes longer, to evict tenants once the possession order has been awarded.
A faster alternative is to use a High Court Enforcement Officer (HCEO) who can usually repossess the property within days, often saving thousands in lost rental income.
Over the last week, I have been asked several times how we are able to use Section 42 of the County Court Act 1984 to repossess residential property, as others’ experience has been that Judges normally reject the application.
The decision to permit the transfer to an HCEO is, ultimately, at the discretion of the Judge. However, you can make your case significantly stronger by using wording that explains the reason for the transfer to any Judge considering it. Often, it is this explanation that sees the transfer accepted and ultimately, rapid repossession of your property.
Initial application
Ideally you will request the enforcement by an HCEO in the initial application, explaining the lengthy delays afforded by the County Court Bailiff. Here you will ask the Judge to put this on the possession order:
“Once the time allowed for the Possession Order to expire has passed, by virtue of Section 42 County Court Act 1984 the matter is transferred to the High Court for enforcement”
If the tenants don’t leave, you will then instruct your HCEO, who will apply for the writ of possession (a court fee of £60 is payable), and then conduct the eviction.
Rent arrears
If you are also owed rent arrears on the property, you can add a claim for money to the possession order, so that you do not need to apply separately for a judgment and writ of fieri facias.
Existing possession order
In this case, you will need to make an application notice on form N244 and use this wording in question 3:
“Following the possession order granted to [claimant], the tenant has not left the property by the date stipulated. The order states the right to ask the court, without further hearing, to authorise a High Court Enforcement Officer to evict the tenant. I have been advised by the court that the County Court Bailiffs will be unable to carry out the eviction before [date]. I therefore request that the Judge permit that the case be transferred without delay to High Court Enforcement Officers for enforcement purposes, as covered by Section 42 of the County Court Act 1984, to prevent further loss of rental income, which is currently over £X.”
If the possession order was awarded by virtue of Section 8 rent arrears, you can also add:
“We also request a money order enforceable by a High Court Enforcement Officer for £Y on a ‘rolling’ basis of £Z per day for use and occupation from the date of judgment to the date of possession.”
Transfer up form (N293A)
Should your request be granted under Section 42, you will also need to complete form N293A to transfer the case to the High Court for enforcement. We recommend you ask that this be sealed (i.e. approved by the court) at the same time as the application under Section 42, so that enforcement can commence without delay.
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Disclaimer: The statements and opinions expressed in this article are those of the author and do not necessarily reflect those of Sheriffs High Court Enforcement Ltd, trading as The Sheriffs Office. Sheriffs High Court Enforcement Ltd does not take any responsibility for the views of the author. The author will not be held responsible for any comments posted by visitors to this site. Please note that this article does not constitute legal advice. The author has used his best endeavours to make this article as accurate and complete as possible, but requests that the reader be aware that the law of England and Wales frequently changes. The author strongly advises the reader to take legal advice before embarking on any enforcement action.
