Got possession order - what else can go wrong?

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    Got possession order - what else can go wrong?

    Have finally been awarded possession after the seemingly "usual" time of about 6 months - with no rent paid in that time of course. The tenants have been ordered to leave by the 29th December, and are still in the property. I'll be instructing the court bailiff on Monday (first day back after their Xmas amnesty), but was just wondering what else the tenant can do to delay eviction further, as I'm sure they will try everything.

    I know the bailiff has to give them 10 days notice of when the eviction will take place. Can this date be extended further by the tenant appealing? What happens on the day if the tenant refuses entry to the bailiff? Can the bailiff physically remove the tenants if they refuse to go?

    Thanks,

    Colin

    #2
    Well, it has already taken six months to get the possession order and the bailiff will no doubt require an extra month due to "pressure of work", once the date and time of eviction arrive, that should be it. You should attend so as to change locks e.t.c with the bailiff and if you suspect that there will be any violence, police attendance should be obtained as well. I imagine that if they try any other delaying tactics by applying to the court to get the eviction delayed, the judge will show them little sympathy as it has already taken so long to get the possession order, but then as we know, judges are unpredictable people.

    P.P.
    Any information given in this post is based on my personal experience as a landlord, what I have learned from this and other boards and elsewhere. It is not to be relied on. Definitive advice is only available from a Solicitor or other appropriately qualified person.

    Comment


      #3
      Bit of a horror story and don't want to scare you but, the day the bailiff was going in Shelter put in an appeal it was upheld due to a date error, we then negotiated a time for the tenant to leave so long as we agreed not to chase any outstanding monies owed, the agreed date was the 9th of Dec however on the 6th the tenant appealed and was heard on the 8th thankfully the judge threw it out as they had taken over 12 months to be evicted and allowed the bailiff to carry out the eviction the following day, had the appeal been upheld we would have had to start again. In total it took over 12 months but some of that was due to the fact that Shelter had a better solicitor than we did. I hope it goes well for you, good luck.

      Comment


        #4
        Hi

        Just to confirm what JAC has said, it is theoretically possible to have a possession order varied or set aside on a number of grounds including:

        a) if the tenant wasn't at the original hearing and has a reasonable chance of success at a retrial
        b ) there was an error of procedure (e.g. documents were not served properly)
        c) there was an abuse of process (e.g. excessive delay in enforcing possession)
        d) oppression (e.g. someone is "tricked" into falling into arrears or breaching an order)
        e) the procedure or the outcome has breached someone's human rights (e.g. .... well, there's not much case law on this yet!)

        Just to make you feel a bit worse, any of these grounds can also be used after a warrant has been executed. But, don't worry, all these are extremely rare in the case of ASTs, particularly where its a section 21 action.

        Good luck and more than likely everthing will be fine.

        Preston

        Comment


          #5
          Thanks for the kind words. Just got back from the court and I've been given an eviction date for January 19th. Unfortunately the tenants have requested a hearing to get the possession order set aside - I assume I should get my solicitor to attend with me?

          Thanks again.

          Comment


            #6
            what does it mean to get the possession order set aside? I have been given an eviction date of 19th Jan (I served a S21 then accelerated procedure) and the judge has granted me an eviction date of 19th Jan with the tenants to pay costs of £150 but the judge has also set a hearing for the 15th Jan to possibly set a varied date - i assume the defendants can ask for extra time to find alternative accomodation but I hope it doesnt mean that the order can be stopped? can somebody clear this up for me pls? Thanks

            Comment


              #7
              Originally posted by Muttley View Post
              Thanks for the kind words. Just got back from the court and I've been given an eviction date for January 19th. Unfortunately the tenants have requested a hearing to get the possession order set aside - I assume I should get my solicitor to attend with me?

              Thanks again.
              Hi, yes, I would certainly do so in your position - provided it is a lawyer who is very experienced in this type of litigation. Forgive my cycnicism, but I've seen too many lawyers in this type of situation that are simply very expensive note takers - what you need in a case like this is a knowledgeable advocate.

              By the way, what ground for possession did you use?

              Good luck

              Preston

              Comment


                #8
                Originally posted by bhurinder View Post
                what does it mean to get the possession order set aside? I have been given an eviction date of 19th Jan (I served a S21 then accelerated procedure) and the judge has granted me an eviction date of 19th Jan with the tenants to pay costs of £150 but the judge has also set a hearing for the 15th Jan to possibly set a varied date - i assume the defendants can ask for extra time to find alternative accomodation but I hope it doesnt mean that the order can be stopped? can somebody clear this up for me pls? Thanks
                Hi

                Have replied to his question on your other thread.

                Preston

                Comment


                  #9
                  They were on a rolling AST as they failed to sign and return their original AST renewal. So my agent gave them 2 months notice as required, and they didn't leave. We were awarded possession via S21 on December 5th - the judge gave them until December 19th to get out (of course they didn't leave). They have now asked for a hearing to stop the bailiffs going in on the 19th January. This is nothing to do with £6k rent arrears that they currently owe...)


                  Originally posted by Preston View Post

                  By the way, what ground for possession did you use?

                  Good luck

                  Preston

                  Comment


                    #10
                    I'm now getting very disillusioned with our legal system - apparently the tenant has been into the court today to request the hearing be postponed as they "need more time to seek legal advice". They've only had nearly 7 months, and it was them that requested the hearing this week. Hopefully the judge will deny this request, but nothing surprises me now...

                    Comment


                      #11
                      Well back from court now - and after requesting the hearing, they didn't even bother to turn up. The Judge threw out both their requests, so the eviction still stands. However, I'm told that they can now appeal again before a "circuit judge" rather than the district judge we had today

                      How long can this go on for? I imagine they're going to try everything they can, even on eviction day.

                      Comment


                        #12
                        Oh how I love our legal system - just heard from the courts and the tenant has requested another hearing for this Thursday. This is after requesting a hearing last Friday, where the judge threw out his appeal (not that the tenant even bothered to turn up).

                        How long can this keep going on? I'm at a complete loss how this can keep happening

                        Comment


                          #13
                          Originally posted by Muttley View Post
                          Oh how I love our legal system - just heard from the courts and the tenant has requested another hearing for this Thursday. This is after requesting a hearing last Friday, where the judge threw out his appeal (not that the tenant even bothered to turn up).

                          How long can this keep going on? I'm at a complete loss how this can keep happening
                          you say the original possession order was for 29 December - what is the date this order was made (NB the order may have 2 dates, 1 for when it was typed and 1 for when it was made - its this second date that is important.)

                          I do not know on what ground possession was sought but read s88 and s90 of the Housing Act 1980. Section 88 allows the court the power to suspend a possession order basically on whatever terms it wants and for as long as they want to. Section 89 restricts this in the case of possession proceedings to a longstop date of 6 weeks from the date the first order was made giving you possession.

                          I would suspect the first order for possession was probably dated around 12 December 08 and 6 weeks from then is not far away. Even if this takes you no where it is not unreasonable to ask for an amount of the arrears (if any exist) to be paid to allow their continued occupation, or for mesne profits* for the period since the lease ended until the date of possession.

                          I would argue for no extension unless they clear 75% of the arrears and also mesne profits. Ask the judge to make an order that should the T pay the sum of £* within 3 days the date for possession be extended to (date 6 weeks from date of first order). This means if T does not pay then you can apply for bailiffs straight away

                          * mesne profits = a sum of money paid for occupation of land to a person with right of immediate occupation, where no permission has been given for that occupation- its calculated on the same basis as rent - just called a different name!
                          PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

                          Comment


                            #14
                            Hi Paul,

                            the order was made on December 5th. Possession was sought on a 2 months notice period (from a rolling AST) which expired way back in October, so nothing to do with rent arrears (I have that going on in a separate case). I'm just at a loss as to why this can continue apparently indefinitely. I've not had a penny in rent since last May.

                            Comment


                              #15
                              Muttley,

                              You're not alone!
                              Been there, done that.

                              My tenant tried every trick in the book to get extra time and submitted a defence.

                              Unfortunately for them and luckily for me, the date of the hearing was 6 weeks after the PO had been granted. I did however, have to point this out to the judge. The judge said that I had waited long enough for my property and that the original PO was upheld.

                              I still had to apply for a bailiff though and wait a further fortnight before I got my property back. It was the greatest feeling!

                              All in all, the whole episode cost me £2500 in lost rental and expenses which I've no hope of recovering as the tenants were unemployed.

                              I just look on it as a valuable lesson, at the end of the day I've got my asset back and in one piece.

                              Keep fighting, you'll get what's rightfully yours in the end.

                              Comment

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