Tenants legal remedies after eviction

Once the warrant has been executed, tenants are unable to rely on any of the statutory provisions that allow the court to stay or suspend the execution of the possession order or postpone the date for possession. Those powers are only available before the execution of the order. However, if appropriate, an application to set aside the possession order after it has been executed may be made. If the court sets aside the possession order then the warrant is also set aside. [1]

Often, the circumstances of the case mean that it is not appropriate to apply for a set aside of the possession order. The only other way for an occupier to be reinstated into a property after the eviction is by making an application to set aside the warrant. If the possession order itself cannot be set aside, a warrant of possession may only be set aside after execution where it was obtained by fraud, or there has been an 'abuse of process' or 'oppression' in the execution of the warrant.

It is not possible to provide a definitive list of examples of conduct that may amount to 'oppression' or 'abuse of process'. However, some examples from case law provide an insight into some of the possible situations involved, for example, if:

• the occupier is deprived of the opportunity to apply to stay the warrant, before it is executed, due to being deterred from doing so by a housing officer[2]

• failure to comply with a suspended possession order occurred whilst the tenant was remanded in custody for a short period and the council applied and obtained a warrant without notice and execute it in her/his absence, despite the fact that the tenant had notified the council of her/his whereabouts. In one case, the court considered that the council were under an obligation under the relevant housing benefit regulations to invite the tenant to renew his housing benefit claim[3]

• the landlord makes false representations on court forms as to pending appeal proceedings by the occupier[4]

• a warrant is executed where the tenant was given the impression that no further action would be taken, for example until a claim for housing benefit had been resolved[5]

• the landlord failed to follow the correct procedure following the tenant’s breach of a suspended possession order[6] (for more information see County court enforcement).

The 'oppression' need not be as a result of the conduct of the claimant; it can include the conduct of a third party, such as the court.[7] However, the conduct itself must be unfair and 'oppression' is not established simply because there is an unfair outcome in the case.[8] In one case, the judge indicated that oppression occurs where a public authority insists on its strict rights in circumstances that make that insistence manifestly unfair.[9]

In one case, where a secure tenant with a possession order for rent arrears and a warrant suspended on terms became an assured tenant following a stock transfer from a local authority to a housing association, the new landlord was entitled to start fresh possession proceedings on grounds 10 and 11 of the Housing Act 1988 for arrears accrued after the original order was granted, even though the original order remained enforceable.[10]

Applications should be made without delay on form N244 with evidence in support.

Although there is a right to bring an appeal against the order made by the judge, advisers should be aware that the courts have been extremely reluctant to disturb the decision of a judge made in exercise of her/his discretion, eg in assessing the reasonableness of making a possession order. In one Court of Appeal case, the judge stated that courts should only interfere with the exercise of the trial judge's discretion in such a case, if it can be shown to be plainly and utterly wrong.[11]

However, successful appeals are brought on the basis that the judge has made an error of law or has misapplied the law in making an order. This may include an appeal against a finding by the district judge that it was reasonable in the circumstances to make a possession order.[12]

In recent years, the Court of Appeal has adopted a particularly robust approach in refusing appeals against the decision of the county courts in making absolute orders for antisocial behaviour.[13] Similarly, the Court of Appeal has often substituted an outright order for an order suspended by the county court.[14]