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Changing possession orders

This content applies to England & Wales

This section looks at ways in which the borrower may be able to prevent or delay losing their home by applying to court to challenge, alter or discharge a possession order or to stay or suspend a warrant. This advice applies only to residential mortgages. 

The borrower may wish to challenge or amend the order that has been made. The borrower can:

  • appeal against the order
  • apply to set aside an order
  • apply to vary an order
  • apply to suspend an outright order for possession.

After a warrant has been issued, the borrower can:

  • apply to stay a warrant for possession
  • apply to suspend a warrant for possession.

If the property is rented out, an 'unauthorised' tenant may be able to take action to prevent enforcement of a possession order by up to two months. An 'authorised' tenancy will be binding on the lender (see the Tenants of mortgagors section).

Appealing against a possession order

An appeal against a possession order should be made within 21 days of the date the order was made unless the court grants an extension. An appeal can normally be only be brought on a point of law. The fact that the borrower disagrees with the decision is not a ground for appeal.

The rules governing appeals are set out in Civil Procedure Rule (CPR) 52. There is usually a court fee to pay and costs involved in obtaining the supporting documents required.

A borrower can start an appeal by filing an appellant's notice (N161).[1] An appeal will only be allowed where the judge's decision was wrong or unjust because of a serious procedural error or irregularity. The general rule is that a borrower cannot appeal against a finding of fact, or against the exercise of discretion by the judge.

There is no automatic right to introduce new points on appeal. The appellate court may refuse to admit new evidence[2] and the decision to exercise discretion in the borrowers favour would depend on the analysis of relevant factors, such as:[3]

  • whether the original decision was made at a trial or at a short summary hearing
  • the nature of the new point
  • whether the opposing party would suffer prejudice as a result.

In one case, where, following the borrower’s default on a loan secured on his property by way of a second mortgage, the initial order was made at a short summary hearing and the borrower appealed promptly on grounds which the lender agreed would have likely resulted in a full trial if raised at the initial hearing, the Court of Appeal held that the judge's decision to allow the borrower to raise new points on appeal had been correct.[4]

Applying to set aside or vary an order

Applications to set aside or vary an order should be made on form N244, which is available free of charge from the county court. The application should set out the information the borrower wants the court to take into account (see question 10 on form N244). This can be provided in either:

  • a witness statement
  • a statement of the case, or
  • written evidence

An application to set aside an order should provide an outline of the defence the borrower seeks to rely on.

Setting aside an order

When an order is set aside it is as if that order was never made. Any outstanding warrant of possession will automatically be set aside.[5]

Establishing whether the order was made at trial

Most courts hear a number of possession claim during a morning or afternoon session. Typically, the court will make a decision in a 5 to 10 minute hearing. The Court of Appeal has held that in the absence of exceptional circumstances these hearings do not constitute a 'trial', because for a possession order to be made at trial case management directions must be given and the case must be allocated to a track.[6]

Setting aside orders not made at trial

An order made at a hearing in the normal housing possession list is similar to a summary judgment and not an order made at trial. The court can exercise its general powers of case management and consider any relevant matter in determining whether it is just to set aside the possession order.[7] The matters the court is likely to consider include:[8]

  • the interests of the administration of justice
  • whether the application has been made promptly
  • whether there is a good reason for not attending the hearing (if applicable)
  • the effect seeing aside the order would have on each party
  • the evidence.

In the absence of any unusual factors the court will normally apply the three-stage test  for setting aside orders made at trial (see below).[9]

Setting aside orders made at trial

If the borrower did not attend court, they may be able to have the possession order set aside.[10] The borrower needs to demonstrate that they have:

  • a good reason for not attending court, for example because they did not receive the claim form or because of serious illness, and
  • acted promptly after finding out about the possession order, and
  • a defence with reasonable prospects of success.

There are no definitive guidelines for what constitutes 'acting promptly' or a 'good reason' for not attending the hearing. It is a discretionary decision based on the circumstances of the case.


Varying an order

The borrower can apply to vary the possession order if their circumstances have changed since it was made or if the court did not have the opportunity to consider a payment proposal, for example because the borrower did not attend the hearing.[11] This would normally be in situations where the borrower can no longer afford the payments specified in the order and is requesting a reduction in the payment level. If the borrower cannot comply with the terms of the order and does not ask for it to be varied, they have breached the order and the lender would be able to apply for a warrant of possession. If the order is breached before going back to court, the borrower has the option of asking for possession to be postponed or the warrant to be suspended (see below).

Suspending an outright possession order

Where the court has granted an outright possession order, it may be possible for the borrower to apply to have the order suspended if they have grounds for doing so.[12] The borrower can ask for possession to be suspended as long as payments are made, or postponed until a certain date. This is at the court's discretion, but an application may be successful if, for example, there has been a change in circumstances since the original order was made, or if there is new evidence available that was not before the judge at the previous hearing. The court has the same powers to suspend possession that apply at the initial hearing. This means the court is likely to require the arrears or balance to be paid within a reasonable period (see Types of orders for more information).

Staying or suspending a warrant for possession

Where the lender has obtained a warrant of possession, the borrower can ask the court to stay the execution of the warrant.[13] This can be a temporary remedy while the borrower waits for their appeal or application to vary an order to be heard. The Administration of Justice Act 1970 does not limit the time for which a stay can be imposed. The court can exercise this power only where the borrower can show their ability to repay the loan within a reasonable period.[14]

If the property is rented out, an 'unauthorised' tenant may be able to take action to delay eviction by up to two months (see the Tenants of mortgagors section).

Discharging an order for possession

When making a suspended possession order, the court can include a ‘proleptic provision’. This is a provision that says that the order will be discharged if the borrower meets the conditions specified in the order.[15]

Where the suspended possession order does not include a proleptic provision it remains in force and the lender could take action to enforce it even if the original arrears have been cleared.[16] Where the borrower has cleared the arrears they can apply to the court, on Form N244, to discharge the order. [17]

[1] rule 52 Civil Procedure Rules SI 1998/3132 (as amended).

[2] CPR 52.21(2).

[3] Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337. See also Singh v Dass [2019] EWCA Civ 360.

[4] Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337.

[5] CPR 70.6.

[6] Forcelux v Binnie [2009] EWCA Civ 854.

[7] CPR 3.1(7).

[8] CPR 3.9; Denton v White [2014] EWCA Civ 906.

[9] Hackney v Findlay [2011] EWCA Civ 8.

[10] CPR 39.3(3); Bank of Scotland plc v Pereira [2011] EWCA Civ 241; Lukan v Ghana Commercial Finance Ltd [2018] EWHC 418 (QB).

[11] s.36(4) Administration of Justice Act 1970; s.135(4) Consumer Credit Act 1974.

[12] s.36(2) Administration of Justice Act 1970; s.135 Consumer Credit Act 1974.

[13] s.36(1) Administration of Justice Act 1970; Order 37 County Court Rules 1981.

[14] Zinda v Bank of Scotland Plc [2011] EWCA Civ 95; Jameer v Paratus AMC [2012] EWCA Civ 1924.

[15] s.36(2) and (3) Administration of Justice Act 1970.

[16] Zinda v Bank of Scotland Plc [2011] EWCA Civ 95.

[17] CPR 3.1(7); see also paras 100 and 107 Knowsley Housing Trust v White; Porter v Shepherds Bush Housing Association; Honeygan-Green v Islington LBC [2008] UKHL 70.

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