Possession proceedings: Whether a writ of possession is null & void where a mental health crisis moratorium is in place

Whether a writ of possession could be declared null and void in circumstances where the applicant had been protected by a mental health crisis moratorium at the time the writ was executed.

The background

In Lees v Kaye and another [2022], the applicant owned a lease of a ground floor flat. Some years after the applicant entered into possession, the respondent acquired a long lease of the upper flat in the building. The respondent brought proceedings in the County Court against the applicant on grounds of nuisance and harassment, citing that the applicant disturbed his enjoyment of the flat.

The respondent’s claim was successful and he was awarded damages and costs, secured by a charging order over the applicant’s lease. In later, separate proceedings, a district judge awarded the respondent an order for possession and sale of the lease of the applicant’s flat.

The applicant received a “breathing space moratorium” in June 2021 under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 (the “Regulations”). A further mental health crisis moratorium was granted on 12^th January 2022. On 13^th January 2022, a High Court writ of possession was issued. In March 2022, sale of the lease of the applicant’s flat to the second respondent completed, the mortgage was repaid and balance monies paid to the first respondent.

The applicant made an application for a declaration that execution of the writ of possession was null and void because she was protected by the mental health crisis moratorium. In the alternative, she also argued that execution of the writ under such circumstances constituted oppression, and she sought an order allowing her to retake possession of the flat. Her application was opposed by the first respondent on grounds that it had been unclear the moratorium was in place at the time the writ was executed, and in any event that the eviction of the applicant and the sale of the lease had not breached the moratorium.

The decision

The High Court considered a number of points, ultimately finding that the applicant was entitled to an order restoring her position to that prior to her eviction from the property and the sale of her lease.

1. That the moratorium was accurately registered and effective on the date the writ had been executed. The system implemented for registration of moratoria had been followed and no active decision or action was required beyond those undertaken.
2. That the award of damages to the first respondent – a judgment debt – was a non-eligible debt for the purposes of the Regulations. The sum awarded contained an element of damages for personal injury but did not entirely constitute personal injury damages and was therefore exempt from effects of the moratorium.
3. That the judgment debt was not a non-eligible debt and the applicant was not therefore protected from it by the moratorium. The Regulations provided that secured debts were defined specifically as a secured credit agreement, a hire-purchase agreement or a conditional sale agreement. Constituting none of these, the judgment debt was not protected by the moratorium.
4. That the eviction of the applicant from the property and the sale of the lease had been in breach of the moratorium. The court considered Regulation 7, finding that the repossession of the flat and sale of the lease were enforcement actions in breach of the Regulations. Orders for possession and sale had been made to enforce the judgment debt, and the sale had intended to transfer the title of the applicant’s property to the second respondent.
5. That the eviction of the applicant and sale of the property were null and void, as both had been undertaken in breach of Regulation 7. The applicant was not bound by the actions taken by the respondents, and the court stated that this should be taken into consideration when assessing the relief to be granted to the applicant.
6. That, given the court’s finding that the eviction and sale was null and void, the respondent would need to evidence exceptional circumstances when arguing that the applicant should not be able to rely on the regulations and the protection offered by the moratorium. The respondent’s arguments did not prove such exceptional circumstances and the applicant was therefore entitled to an order restoring her position to that prior to the eviction and sale.

Advice and action for landlords

When seeking possession and resale of properties pursuant to leaseholder default, landlords are advised to check thoroughly, and regularly, the leaseholder’s status in respect of any mental health crisis or other moratorium  prior to executing remedies.

In this case, the possession and sale were null and void having been found to be in breach of the regulations and moratorium protecting the leaseholder. Eviction had taken place after the moratorium was granted, all necessary registration procedures had been followed and the leaseholder was entitled to the protection conferred.