Application to vary or postpone a possession order

Courts have powers to postpone the date for possession, suspend execution of a possession order, and vary its terms.

This content applies to England

Court's powers to vary orders

Courts have the power to suspend or postpone the date for possession, or suspend execution of the order. The court may also have the power to vary the terms of any suspended or postponed order, which may be necessary where the tenant's financial circumstances have worsened since the making of the order.

The court has the power to vary the order in these ways only when the order was made on a discretionary ground and the tenant is either:

  • a secure tenant

  • a Rent Act protected or statutory tenant

  • an assured tenant

A possession order obtained by a mortgage lender against a borrower can be varied if the court has a power to delay possession.

The order cannot be varied after the tenant has been evicted, unless the order or warrant for possession can be set aside.

In other circumstances the court cannot vary the order and its power to postpone the date for delivery of possession is limited to 14 days after the possession order was made, or six weeks in cases of exceptional hardship.[1]

This is the position where:[2]

  • the order was made under a mandatory ground[3]

  • the order was made under section 21 of the Housing Act 1988 (the 'assured shorthold ground')

  • where the tenant is a demoted tenant, an introductory tenant, a family intervention tenant, or is a tenant with basic protection

  • the order was made against a licensee

Where the ground is not specified on the face of the order itself, it cannot be presumed that the order was actually made on a mandatory ground, when it could have been made on a discretionary ground.[4] For example, this could apply where a possession order on the grounds of rent arrears in excess of two months was made against an assured tenant, where the possession claim relied upon ground 8 (a mandatory ground) and grounds 10 and 11 (discretionary), but the order did not specify on which ground it was made then it could not be presumed that the order was made on ground 8. It would be open to the court to consider an application to vary or postpone the order.

Application

An application to vary or postpone a possession order can be made using Form N244. There are detailed guidance notes accompanying the form to assist in its completion. The application should set out the information the tenant 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 does not have the effect of automatically suspending a warrant for possession. If a warrant is due to be executed prior to the hearing of an application to vary or postpone a possession order, an application to suspend or stay the warrant should also be made on the same N244 form.

Last updated: 26 March 2021

Footnotes

  • [1]

    Exceptional hardship is not defined in legislation.

  • [2]

    s.89 Housing Act 1980.

  • [3]

    cases 11-19 , Sch.15 Rent Act 1977; grounds 9-11, Sch.2 Housing Act 1985; grounds 1-8, Sch.2 Housing Act 1988.

  • [4]

    Diab v Countrywide Rentals Ltd (2001) Ch D, Legal Action October 2001.