What the court can do

If your lender applies for a possession order, it doesn't necessarily mean that the court will agree to evict you.

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What can the court decide?

After the judge has listened to you and your lender (or in some cases the freeholder), and looked at all the information, s/he will have the following options available to them:

adjourn the case, or
strike out (dismiss) the case, or
make an outright possession order, or
make a suspended possession order, or
make a time order, or
make a money judgment.

What does 'adjourning the case' mean?

At the hearing, the judge may feel that the case can't be decided at that time and that any decision by the court should be delayed. This is called adjourning the case. A case can be adjourned indefinitely or for a fixed period of time. This might happen because:

the judge needs more information from you or your lender before making a decision
you need more time to raise a lump sum to pay off the arrears
you are selling your home and need more time to complete the sale
your financial position is uncertain or may change in the near future – this could arise, for example, where you have applied for a job or are likely to start receiving help with your mortgage costs from the DWP.

If the case is adjourned you may be given a new hearing date. Alternatively, your lender may have to apply for a new hearing after a fixed period of time or if there is a change of circumstances.

If you have mortgage arrears, you may have to pay an amount off the arrears each month in addition to your normal mortgage payments as a condition of the case being adjourned. In the meantime, you will have the right to remain in your home.

What does 'striking out the case' mean?

The judge may decide that the case should be dismissed because there is no reason why you should be evicted. This is called striking out the case. This might happen if:

the claimant has not followed the correct procedure for bringing the case to court
the claimant or their representative does not attend the hearing
the arrears are cleared.

If the judge strikes out the case, you have the right to stay in your home. If the claimant wants to evict you, they will have to restart the court process from the beginning.

What is an 'outright possession order'?

An outright possession order means that you won't have the right to live in your home after the date given in the order. This is usually 28 days after the court hearing. If you think you need more time, tell the judge at the hearing. You may be given more time if you are in a difficult situation, for example, you are ill or you have young children, though any delay is unlikely to be for more than 56 days.

Even if your lender has been given an outright possession order against you, it may still be possible to negotiate with your lender to persuade them not to evict you. At any time before you are actually evicted, you may ask the court to suspend an outright possession order if there are good reasons to do so, for example, you didn't receive the court papers. If you attended the original court hearing, this is usually only worth doing if your circumstances have improved since then.

If you don't leave by the date in the court order, your lender can apply to the court for the bailiffs to evict you. You can't be physically removed from the property by anyone other than the bailiff. It is often only a matter of days before the bailiffs come, but you should receive notification of the date beforehand. They can remove you and your family from the property, but they can't use violence to do so.

What is a 'suspended possession order'?

A suspended possession order is granted if the judge thinks that your lender is entitled to repossess your home, but it's not reasonable to do so immediately because of your circumstances. If it is granted, you will be allowed to stay in your home provided you keep to certain conditions.

In many cases, the condition of a suspended possession order is that you must keep up with ongoing mortgage payments and also pay an agreed amount each month towards the arrears.

The conditions will be explained in the court order. If you don't keep to the terms of the order, your lender can apply to the court for the bailiffs to evict you. This could happen very quickly. You should receive a letter from the bailiffs giving you some advance warning, but there will not be another court hearing unless you apply to the court for a stay of execution before the eviction.

What is a 'time order'?

If you have a secured loan or second mortgage, the court may be able to reduce your payments by either changing the interest rate on your loan, or extending the term of the loan.

This is called a time order. You will need to tell the judge at the hearing that you want a time order, but a time order can be made by the judge even if you haven’t asked for one. A time order can only be granted for certain types of loan, and will depend on when the loan was taken out and the amount you borrowed.

Time orders are normally made for a very limited period, where there is a temporary financial difficulty. A time order will normally only be made where the borrower is able to resume payments at the end of the time order.

The court can only make a time order in cases where it is fair to do so, taking the circumstances of both the borrower and the lender into account. If you are not sure whether you can get a time order you can use our directory to find a local advice centre in your area.

What is a 'money judgment'?

The claimant can ask the court for a money judgment to be registered against you. This allows your lender to recover all of the money owed under the mortgage, not just the arrears. Any money obtained as a result of the sale of the property will reduce the debt.

A money judgment may make it difficult for you to get credit in the future.

Can the order be changed?

In some circumstances, you can ask the court to set aside (ie cancel) the order. This is only likely to be successful if the order should not have been made in the first place. This might be because:

you didn't receive the court papers or you were not aware of the hearing, or
you didn't attend the court hearing and you had reason for not doing so, for example because you were ill.

In both situations, it is important to act quickly from the moment you find out that a possession order was made against you. The court will also ask you to show that you have a reasonable defence before setting aside the possession order.

Alternatively, you can ask the court to change the terms of a suspended possession order, for example, if your circumstances change. This may be because you can no longer keep up with the payments ordered by the court, perhaps because you have less income than you had at the time the court made the possession order. It will be easier to do this if you have kept to the conditions and your lender agrees to the change. It may even be possible to have an outright order for possession suspended or varied to allow you to stay in the property. In some cases the court can even set aside or cancel a possession order after you have been evicted.

To cancel, suspend or vary an order, you will need to apply to the court by filling in a specific form. You may also have to pay a fee, although if you are claiming benefits or you have a low income, you might not have to pay. The court will set a hearing date when your application will be considered. An adviser can help you fill in the application form.