Royal Bank of Scotland v Bray Halifax County Court 25 November 2011
At what point in the course of an eviction and securing of a property is the warrant considered to be executed, so that no application for a stay can be made? This is a County Court case, but the Court’s decision is clear and supported.
Mrs Bray’s home was mortgaged to RBS. RBS had obtained a possession order and had obtained, then withdrawn 5 previous warrants. RBS got a further warrant. Before the eviction date Mrs B wrote to RBS offering to clear the arrears at lunchtime on 18 November 2011 as she had sold her car and the funds would have cleared by 18 Nov. She heard nothing in response and went to work on 18 November. She was then called by a neighbour to say they had seen someone in her garden. She went home to find the court bailiff, locksmith and dog handler there. They had gained access though the rear door.
The bailiff told Mrs B to make an emergency application. She rushed to the Court and made an application. The Court officer referred the application to the bailiff’s clerk and the Judge, but the Judge was incorrectly told that the warrant had already been executed and the application was not heard. Mrs B was referred to the CAB, which made an emergency application to set aside the warrant on the ground of oppression, but Mrs B also sought to rely on her original application from that morning, arguing that it had been made before the warrant had been executed, as the bailiff had not at that time given quiet possession to the Claimant.
At the hearing, the bailiff confirmed that he had received a telephone call from the court about Mrs B’s application while he was still at the property and before it had been fully secured and both locks refitted.
The District Judge found that the warrant had not been executed at the time that Mrs B had issued her application. The warrant was suspended on terms of payment of the arrears in full and of mortgage instalments thereafter.
My view is that this has to be right. The warrant be in the course of being executed, but it is not fully executed until the bailiff has finished and the Claimant has quiet possession. (Woodfall, The Law of Landlord and Tenant, supports this view).
Hat tip to the January 2012 Legal Action Housing updates for the case report and to Calderdale CAB for letting us know about the case in the first place.
In this case the claimant’s position was that the warrant is executed at the point the bailiff enters the property as otherwise they would be a trespasser while ‘executing’ the warrant. The claimant could not find any authority to support this view. Mrs B’s case was that Woodfall on quiet possession applied and while referring to rental possession proceedings it should also apply to mortgage possession proceedings and the judge held that to be the correct view. On the facts in this case it was literally a matter of minutes that made all the difference.
Why was the possession order suspended and not set aside If the arrears were satisfied, or was this an ongoing situation?
It was a warrant, and the arrears hadn’t been paid off when the stay application was made, though apparently could be immediately thereafter. The possession order had been made some time before.