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Enforcement

WHAT HAPPENS IF THE COURT HAS MADE AN ORDER FOR POSSESSION, OR THE TERMS OF A SUSPENDED ORDER FOR POSSESSION ARE NOT COMPLIED WITH?

Unless the court has added a note that the order is not to be enforced without further order - that means that the lender will have to apply back to court for permission to enforce the order - it is open to the lender to take immediate steps to execute the order once the specified date for giving up possession has passed, or any of the terms upon which the order was suspended have been breached.

The usual procedure in residential mortgage possession cases is for the lender to apply for a Warrant of Possession under County Court Order 26 Rule 17 (one of the former County Court Rules which survives the new Civil Procedure Rules). This is done in writing using a Form N325 (request for warrant of possession) and the court will then issue a Form N49 (warrant of possession). Execution of the warrant is usually carried out by a Bailiff at an appointed date and time in accordance with a Notice of Appointment (Form Ex 96).

A warrant cannot be issued without permission, more than six years after the order for possession: CCR Order 26, r 5(1)(a), CCR Order 26, r 17(6)

CAN THE ISSUE OF A WARRANT BE CHALLENGED ON HUMAN RIGHTS GROUNDS?

No. For a detailed consideration of Human Rights issues in the context of mortgage possession claims, see under HUMAN RIGHTS.

A lender's application to issue a warrant of possession is no more than an administrative act to give effect to a judicial decision. The occupier's Human Rights are considered at trial and no separate determination of those rights arises on the issue of the warrant: Southwark London Borough Council v St Brice [2002] 1 WLR 1537

CAN ANYTHING BE DONE EVEN AFTER THE WARRANT HAS BEEN ISSUED?

It is still possible for a borrower to apply to stay or suspend execution of the warrant under section 36 Administration of Justice Act 1970 even after the warrant has been issued, but as before, the qualifying criteria will need to be satisfied and invariably this will require fresh evidence of the borrower's financial circumstances.

Once the warrant has been executed and the lender has obtained possession, there are only very limited circumstances in which the borrower can apply to stay execution. See Da Rocha-Afodu v Mortgage Express [2007] EWHC 297 (QB) applying Cheltenham & Gloucester Building Society v Obi (1996) 28 HLR 22.

The court could not set aside or suspend a warrant for possession after execution unless either (1) the possession order on which it was issued was itself set aside, (2) the warrant had been obtained by fraud, or (3) there had been an abuse of process or oppression in its execution.

WHAT HAPPENS IF THE BORROWER GOES BACK INTO POSSESSION?

The lender will have to obtain a warrant of restitution pursuant to CCR Order 26, r 17(4). The lender must obtain the court's permission, but an application can be made without notice being served on the borrower. The application has to be supported by evidence of wrongful re-entry into possession following the execution of the warrant.

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