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Possession orders

This content applies to England

Different possession orders that the court can make.

Options available to the court

Whether at the first hearing or later at a final hearing, the court has to decide whether to grant an order for possession. For assured shorthold tenancies the accelerated possession procedure allows an order to be granted without a court hearing in certain circumstances (see the page on Accelerated possession procedure).

In practice, the court has the following options:

  • dismiss the claim for possession
  • adjourn the claim for possession
  • make an outright order for possession
  • make a postponed or suspended order for possession.

Dismiss claim for possession

Where the court is not satisfied that a ground for possession has been established, or that it is not reasonable to grant possession (where the ground is discretionary), it will dismiss the landlord's claim.

Adjourn claim for possession

Where possession is being sought on discretionary grounds, the court has the power to adjourn the landlord's application for possession for such period as it thinks fit.[1] In practice, courts will often adjourn the claim for possession for a fixed period of time, or even indefinitely, upon payment of the rent and a regular amount towards the arrears. If the tenant does not comply with these conditions, the landlord has to go back to the court for an order (there is no requirement to serve a fresh notice or issue a new claim form).

Where possession is being sought upon a mandatory ground, or when the landlord seeking possession does not have to establish a ground for possession, the tenant can only ask for an adjournment before the evidence is heard by the court. The court, using its general powers, can grant an adjournment at this stage.[2] The court has no power to adjourn proceedings once it is satisfied that the landlord is entitled to possession (unless the tenant has a disability discrimination, public law or human rights defence.[3]

Disability discrimination/public law/human rights defences

A public or private sector tenant can apply for an adjournment if s/he can argue that there is a defence to possession proceedings based on disability discrimination. For more information see Disability discrimination defences.

A public sector tenant can apply for an adjournment where the landlord is a public body and s/he can argue that there is a public law defence based upon conventional judicial review grounds or a breach of her/his human rights. For more information see Public law and human rights defences in possession proceedings.

Outright order

Where the court is satisfied that the landlord has proved a mandatory ground, or when the landlord seeking possession does not have to establish a ground for possession, it will make an outright order for possession. The court must set the date for possession no later than 14 days after the making of the order, unless this would cause exceptional hardship to the tenant, in which case possession may be postponed for up to 42 days.[4] Exceptional hardship is not defined. It should be noted that although the courts will often exercise their discretion in favour of the tenant and allow 14 days, or up to 42 days if appropriate, in some cases they might order 'possession forthwith' (immediate possession) or set the date for possession less than 14 days after the order is made.

An outright order can also be made when a discretionary ground for possession is proved, if the court considers that it is reasonable to grant possession and it decides that possession is not to be suspended or postponed on terms.[5] Where an outright order is made on discretionary grounds, the 42 days postponement limit does not apply and the court can exercise its discretion as to when the order will take effect.

After the possession order takes effect, the landlord can apply for enforcement of the possession order to evict the tenant.

Postponed/suspended order

Where possession is being sought on a discretionary ground, the court may 'postpone' or 'suspend' an order for possession where it is satisfied that the ground for possession has been established and it is reasonable to make a possession order.[6] Possession is postponed or suspended on condition that the tenant will in future meet the terms of the tenancy agreement and those that the court imposes.

If the claim for possession relates to rent arrears, the order must include conditions for the payment of the current rent and the arrears by the tenant (usually in the form of a weekly or monthly installments to pay off the arrears), unless this would cause exceptional hardship.[7] The court has the power to make an order that allows the tenant to pay off the arrears over a long period,[8] but it should not extend it indefinitely.[9]

In all other cases, the court can impose any such conditions as it thinks fit. However, where the ground for possession relates to a serious antisocial behaviour, for example cannabis cultivation at the property, a possession order should only be postponed or suspended in exceptional circumstances, where there is cogent evidence to demonstrate that the offender's particular conduct has ceased and there is a sound basis for hope that the conduct will not be repeated in the future. Unless the court is provided with evidence demonstrating real hope that an individual will change her/his behaviour in future, there is an entitlement to an outright possession order.[10]

The Court of Appeal confirmed that the making of a suspended possession order, rather than an outright order, involves the exercise of court discretion and depends on the facts of each case. In order to provide guidance, the Court said that:[11]

  • to be 'cogent', the evidence that there is sound basis for hope that the antisocial conduct will cease in the future must be more than credible; it must be persuasive
  • when deciding whether to suspend a possession order, the court must realistically focus on the future, not on the past
  • the likelihood of actions by third parties is relevant when assessing whether there is a real hope of compliance by the tenant in the future, for example where a tenant with mental health problems is able to show that s/he will comply with the terms of a suspended possession order with the help and support of others. However, when framing the conditions of the order, a court must be careful not to expect a landlord to do more than it is reasonable in the circumstances and having regard to the resources available to that landlord
  • dishonest evidence by the tenant alone does not prevent the court from suspending a possession order
  • a court making a suspended possession order, rather than an outright order, should give adequate reasons as to why it has decided to exercise its discretion in each case.

Suspended order - effects of non-compliance

With this form of order the court fixes a date for possession. If the tenant breaches the term of a suspended possession order (SPO) the landlord can apply to the court for a warrant of possession.

Court form N28 (not available to the public) provides a template of an SPO for the use of the courts.

Postponed order - effects of non-compliance

With this form of order the court does not fix a date for possession. If the tenant breaches the term of a postponed possession order (PPO) the landlord must first give the tenant notice that s/he intends to apply to the court to fix a date for possession, and then apply to the court. The court can decide whether to award a date for possession with or without a further court hearing. When a date for possession expires the landlord can apply to the court for a warrant of possession.

Court form N28A (not available to the public) provides a template of a PPO for the use of the courts.

Discharge of postponed or suspended possession order

For information about the circumstances under which a court can discharge a postponed or suspended order for possession, see the page Discharging a possession order.

Other orders

In addition to seeking possession, a possession claim may include a number of other claims, for example:

  • a money claim for rent arrears (seeking a money judgment)
  • an application for an injunction, for example where the tenant is alleged to have behaved badly
  • an application for a demotion of the tenancy (for details see the section on Demoted tenancies)
  • an unlawful profit order (see the page Social housing fraud for details).

Cost orders in possession claims

If a possession order is made, the tenant will usually be ordered to pay the landlord's costs. Where the landlord is a local authority or private registered provider of social housing, it is usual for any costs to be added to the tenant's rent account. Where the landlord's claim for possession is dismissed, the tenant can ask the court to order that the landlord pays her/his legal costs.

The amount of the court costs will depend on the type and complexity of the claim and, in particular, on how much time has been spent on its preparation and presentation.

Where a claim for possession is adjourned the court can still make an order for costs against the tenant.

Orders against bankrupt tenants

The Court of Appeal held that courts hearing possession cases can issue a possession order against a tenant who is bankrupt or subject to a debt relief order (DRO).[12] For more information see the pages on Bankruptcy and possession and Debt relief orders and possession.

[1] s.100(1) Rent Act 1977; s.85(1) Housing Act 1985; s.9(1) Housing Act 1988.

[2] Civil Procedure Rules, rule 3.1.

[3] North British Housing Association Ltd v Matthews [2004] EWCA Civ 1736.

[4] s.89 Housing Act 1980.

[5] see, for example, Barking and Dagenham LBC v Bakare [2012] EWCA Civ 750; Housing & Regeneration Community Association Ltd v Begum and another [2017] EWHC 2040 (QB).

[6] s.100(2) Rent Act 1977; s.85(2) Housing Act 1985; s.9(2) Housing Act 1988.

[7] s.100(3) Rent Act 1977; s.85(3) Housing Act 1985; s.9(3) Housing Act 1988.

[8] Lambeth LBC v Henry (2000) 32 HLR 874.

[9] Taj v Ali [2000] 43 EG 183, CA.

[10] Sandwell MBC v Hensley [2007] EWCA Civ 1425; Knowsley Housing Trust v Prescott [2009] EWHC 924 (QB); Housing & Regeneration Community Association Ltd v Begum and another [2017] EWHC 2040 (QB).

[11] City Westminster Housing Trust v Massey : Manchester & District Housing Association v Roberts [2016] EWCA Civ 704.

[12] Sharples v Places for People Homes Ltd: Godfrey v A2 Dominion Homes Ltd [2011] EWCA Civ 813.

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