Credit Management March 2020

ENFORCEMENT
FREEMAN-ON
-THE-LAND
Lenders are increasingly instructing High Court
Enforcement Officers (HCEOs) to enforce Orders for
possession.
AUTHOR – Alex Hill
IF you were to ask a landlord why
lenders are using HCEOs more
often to enforce an order for
possession, the answer would
invariably be time, which equals
money to a landlord not receiving
rent. So why does the same not apply to a
lender? The answer isn’t quite as simple.
Generally, a lender will enforce the
terms of its security in respect of arrears
and normally after a long period of
working with the borrower to reduce
the defaulted sums. In the case of high
street lenders, it is not uncommon to take
several years to issue proceedings and
even longer to enforce any court order.
Whatever the public perception may be,
high street banks see repossession as a
last resort.
So why do lenders instruct HCEOs if
time not money is the factor? The latest
statistics published by the Ministry of
Justice in November 2019 show a 42
percent year-on-year increase of lender
possession claims. This continues the
trend we have seen in the four prior
quarters and a correlation with the 31
percent increase of those repossessed by
the County Court Bailiffs.
Whilst HCEOs do not publish statistics
on Writs of possession enforced, our
own data shows an increase in lender
repossessions of over 150 percent in 2019.
We are some way from the mortgage crisis
of 2008; affordability, verification and exit
strategy are just some of the factors that
lenders scrutinise in greater detail before
approving a loan. The ‘bad bank’ portfolios
of loans have largely been wound down so
the increase we are seeing is significant in
terms of the current climate.
But this increase does not explain
why lenders are increasingly utilising
enforcement through HCEOs. In fact,
all banks listed in the top 15 of UK
Finance’s largest mortgage lenders of 2018
have ‘transferred up’ as it is commonly
known. A large Building Society recently
commented that they were instructing
HCEOs for the first time in their history.
The simple reason why lenders have not
previously utilised this avenue in great
volume is governed by Section 42 of the
County Courts Act 1984. In summary,
Such enforcement
requires collaboration
with the local
authority, an
ambulance service
and as much time as
the borrower requires
to vacate the property.
only County Court Bailiffs can enforce
possession orders without the express
leave of the court. For the vast majority of
lender possession claims, this is the most
appropriate method of enforcement.
TIME AND MOTION
So, what makes a case suitable for
transfer to the High Court for
enforcement? Well, time is one answer.
A County Court eviction is scheduled
to last 15 minutes. If the occupiers are
ready and able to leave, this is usually
sufficient. However, for example, we
were instructed to take possession of a
property occupied by a paraplegic male.
Such enforcement requires collaboration
with the local authority, an ambulance
service and as much time as the borrower
requires to vacate the property. Such time
is not available in the hectic schedule of
a County Court Bailiff. Another reason
is restitution, where the occupiers have
unlawfully re-entered the property
following enforcement and the claimant
seeks restitution of the property.
Lastly and more tellingly – resistance.
We are seeing an increasing number
of borrowers resorting to disruption
through engaging persons purporting to
be freemen-of-the-land protestors. Such
practices are based on an ideology of
pseudolaw that we have seen escalate to
significant criminal damage and physical
assault. In 2019, we were instructed
by three separate lenders seeking
possession of three properties within the
same locality. Whilst there was no reason
to suspect the matters were related, the
County Court Bailiff reports and our
experience in dealing with such protestor
groups, led to carefully coordinated
enforcement across the three addresses.
We were able to prevent the freemenof-the-land
group from accessing an
arsenal of over 300 dangerous weapons
and several persons were charged with
assaulting both Police and Enforcement
Officers.
The protestors didn’t stop there
and returned to two of the properties
almost daily, harassing our security
team and attempting to access by any
means including de-tiling the roof! The
third property was left unoccupied and
we returned to evict the trespassers on
four further occasions. Whilst criminal
proceedings are ongoing, all three
properties have now been sold.
So rather than time, although we
offer more of this than the County
Court Bailiffs, it is more the experience,
resources, specially trained agents
and perseverance of HCEO groups in
handling complicated cases like these
ones that is increasingly highlighting us
as the safest and most reliable option.
Alex Hill, Property Services Director
at Andrew Wilson & Co.
Advancing the credit profession / www.cicm.com / March 2020 / PAGE 56