We have seen considerable inconsistency in the approach taken by various county courts to the enforcement of possession orders since the introduction of the Tier 1, 2 and 3 restrictions, and then even more so since the second national lockdown was imposed.

Guidance to bailiffs, other than two letters sent by the Lord Chancellor to High Court Enforcement Officers regarding the enforcement position for county court bailiffs, has not yet been released by the government.

New regulations

We did however, receive greater clarity this week when the government laid new regulations before Parliament - The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 - which set out the circumstances in which bailiffs and High Court Enforcement Officers can carry out an eviction process.

The effect of the regulations is that, between now and 11 January 2021, neither county court bailiffs nor High Court Enforcement Officers can deliver a notice of eviction or enforce warrants or writs of possession (or restitution) unless the notice, writ or warrant relates to an order for possession which was made on the following grounds:

1. An absolute ground for possession being Ground 7A for assured tenancies or Section 84A of the Housing Act 1985 for secure tenancies;
2. A discretionary ground, namely 14 (ASB), 14A (DV) or 15 (Tenancy by fraud/misrepresentation) for assured tenancies or the equivalent Ground 2, 2A or Ground 5 in relation to secure tenancies;
3. Ground 8, 10 or 11 (rent grounds) for assured tenancies or the equivalent ground 1 in relation to secure tenancies but only where the arrears are at least equivalent to 9 months, disregarding from that calculation any unpaid rent arrears which accrued after23 March 2020;
4. Ground 7 (tenancy devolved under will/intestacy) – but only where the bailiff takes reasonable steps to ensure the property is unoccupied before delivering the notice or executing the warrant.

The eviction notice, warrants or writs could also be enforced if he order for possession was made against trespassers in a claim to which CPR 55.6 applies.

Importantly, as drafted the restrictions are no different whether the current national lockdown is extended or if an area is in Tier 1, 2 or 3.

The Regulations also prevent a person taking control of goods located inside a dwelling using the procedure set out in Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 between now and the expiry of The Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020 – which is currently 3 December 2020.

How Capsticks can help

We remain well placed to continue to help you deal with cases swiftly and are in regular contact with your local courts to keep a finger on the pulse of any differing practices they are adopting.

If you have any queries around what is discussed in this article, or the steps that you can take in any given case, please do not hesitate to speak to Simon Strelitz, or any of your contacts at Capsticks, to find out more about how we can help.