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Discharging a possession order

This content applies to England

The circumstances under which a court can discharge an order for possession.

Where conditions attached to a possession order are met, the court has the power to discharge a suspended or postponed possession order made against:

  • secure tenants[1]
  • assured tenants[2]
  • regulated tenants.[3]

After the order has been discharged it is unenforceable against the tenant.

Automatic discharge

When making a suspended or postponed possession order, the court can include a 'proleptic provision'. This is a provision that says that the order will be discharged at a future date if the tenant meets the conditions specified in the order.[4] For example, the court could include a provision in an order made on the ground of rent arrears that 'This order shall cease to be enforceable on payment in full of the arrears and costs'.

The purpose of a proleptic provision is to minimise future uncertainty and reduce the need for further applications to the court. However, the order will continue to exist even after the date for automatic discharge has passed, as long as either the landlord or the tenant has applied to the court prior to that date for the provision to be reconsidered. This will be implicit where the landlord applies to court for a warrant (or writ) of possession based on non-compliance with the terms of the order, whether or not a trial date to consider the application can be secured before the discharge date.[5] It would also apply where the tenant applies to court to discharge an order at an earlier date, eg after paying off rent arrears.

Discharge on application

If the suspended or postponed possession order does not contain a proleptic provision, the tenant can apply to the court, on Form N244, to discharge the order.

In making its decision, the court is likely to have regard to the:

  • conditions imposed under the suspended or postponed possession order
  • extent to which the tenant has complied with those conditions.

The court can discharge the order even though the tenant has not strictly complied with all its terms.[6]

Where the tenant does not apply for the order to be discharged after fulfillment of its conditions, the order remains enforceable. If the tenant later breaches the conditions of the order, for example, by falling into further rent arrears, the suspended or postponed possession order can be enforced against her/him.

Discharging an outright order

Where an outright possession order has been made, the court can only discharge the order where:[7]

  • both the landlord and the tenant consent, or
  • in the absence of the landlord's consent, where the order was made on a discretionary ground, by first varying the original order to a suspended or postponed possession order (see the page on Varying an order for possession), and then considering the application to discharge the varied order, or
  • the tenant has grounds to apply to set aside the possession order under CPR 39.3 (ie the tenant did not attend the possession hearing for a good reason, acted promptly when s/he found out that the possession order was made, and s/he has reasonable prospects of success).

[1] s.85(4) Housing Act 1985.

[2] s.9(4) Housing Act 1988.

[3] Payne v Cooper [1956] 1 QB 174, CA; Sherrin v Brand [1956] 1 QB 403, CA.

[4] para 97 Knowsley Housing Trust v White; Porter v Shepherds Bush Housing Association; Honeygan-Green v Islington LBC [2008] UKHL 70; Payne v Cooper [1956] 1 QB 174.

[5] Armstrong v Ashfield DC [2018] EWCA Civ 873.

[6] paras 101-110 Knowsley Housing Trust v White; Porter v Shepherds Bush Housing Association; Honeygan-Green v Islington LBC [2008] UKHL 70.

[7] Burrows v Brent LBC (1997) 32 HLR 625, HL; Marshall v Bradford MDC [2001] EWCA Civ 594.

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