When a commercial landlord needs to repossess his property or recover rent arrears, he has options under Common Law and through High Court enforcement.

However, there are hidden pitfalls for the landlord if the commercial premises have residential premises attached. This is most commonly an issue for retail premises and restaurants, where many high street parades of shops and restaurants have flats above.

If the residential premises are a completely separate dwelling, with a separate entry, then there is no problem and enforcement can proceed as normal.

But if there is any access to the residential property from within the commercial property (even if there is also a separate entry), then you need to be aware of the following points.

Repossession

Normally you have two options – forfeiture of the lease under Common Law, normally using the services of a Certificated Bailiff, or via a writ of possession for enforcement by an HCEO.

However, if there are residential premises attached, access to flat upstairs for example from within shop/restaurant, you cannot forfeit at all.

You will have to get a county court possession order, ensuring that you have requested permission, under Section 42, for enforcement by an HCEO.

Rent arrears

A commercial landlord can recover rent arrears via CRAR, using a Certificated Enforcement Agent, or by obtaining a judgment, which can then be transferred to the High Court for enforcement by an HCEO under a writ of control. The judgment may also be combined with a writ of possession.

When enforcing a writ of control, the enforcement officer can normally force entry to commercial premises without the prior permission of the court.

However, if there are residential premises attached, the enforcement officer may still enforce the writ, but may not force entry. The HCEO will need to know about any attached residential premises before they attend to enforce. Once he has gained peaceable entry, he may also search the residential part to check for assets belonging to the debtor.

Under CRAR this can proceed as normal, as the Certificated Enforcement Agent has no powers to force entry in any case. He may only remove goods belonging to the debtor in the commercial premises.

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