Defendant's application to discharge a possession order

When a defendant can apply to discharge a possession order, and the process they must follow.

This content applies to England

What is a possession order?

The court grants a possession order to give possession of a property to a landlord or mortgage lender who issues a possession claim against a tenant or borrower. The landlord or lender is called the claimant, and the tenant or borrower is the defendant.

The possession order requires the defendant to leave the property by a specified date. If the defendant does not leave, the claimant can apply for a warrant or writ of possession for Enforcement Agents (bailiffs) to evict them.

A possession order is the court’s final decision in the claim.[1] To change it, the defendant must apply to court:

  • to vary the order

  • to set aside the order

  • for permission to appeal

The court can suspend a possession order in some cases, to allow the defendant to show they can keep to regular payments or other terms. If the defendant breaches the terms of the suspension, the claimant can apply to court to enforce the order.  

Read more about the process for possession claims for tenants and mortgage borrowers.

When is a possession order discharged?

Some suspended possession orders contain a term that they will be discharged automatically on a certain date, or when a specified event has occurred. If a suspended possession order does not contain this term, the claimant can enforce it at any point. This means a defendant who repays all their rent or mortgage arrears still has a suspended possession order against them.[2]

Automatic discharge of suspended possession orders

A possession order can include a term that it is discharged automatically either:[3]

  • on a certain date

  • when a specified event has taken place

This is called a proleptic discharge provision.

A possession order containing a term for proleptic discharge could say something like: 'This order shall cease to be enforceable on payment in full of the arrears and costs'.

The possession order is not automatically discharged if the claimant applies to court to enforce the possession order before it is discharged.[4]

When can the defendant apply to discharge a possession order?

The court's powers to discharge a possession order depend on whether it was:

  • made outright

  • suspended on terms

When the court can discharge a suspended possession order

A defendant can apply to discharge a suspended possession order as soon as it has been made. They must apply before the claimant has applied to court to enforce the order.

In practice, the court is unlikely to discharge a suspended possession order if there are unpaid rent arrears.

The defendant must use their application form or witness statement to explain how they have complied with the terms of the suspended possession order.

The defendant can apply to discharge the possession order if they did not strictly comply with all its terms.[5] The court is unlikely to agree to discharge the possession order if there have been serious or frequent breaches of the terms that the defendant cannot explain.

Discharging an outright order

Where an outright possession order has been made, the court can only discharge the order with the consent of the claimant.[6]

The defendant could apply to court to vary an outright possession order to a suspended possession order. If the defendant keeps to the terms of the varied order, they could apply to discharge it later on. This is only possible if the possession order was made against:

  • a mortgage borrower

  • a tenant on a discretionary ground

How the defendant makes the application

The defendant can contact the claimant to find out if they agree to the possession order being discharged. If they do, the defendant can tell the court about the agreement in the application. They should include a draft order where possible.

Apply to court on form N244

The defendant must apply to discharge a possession order using form N244. They file the application by posting or hand-delivering the form to the court that made the possession order. They must enclose the appropriate fee or a completed fee remission form with supporting evidence. Some courts accept applications by email.

The defendant must state on their application that they want the court to discharge the order, and why the order should be discharged.[7]

Submit evidence in support of the application

The defendant should submit evidence in support of their application in the form of a witness statement. The witness statement must explain why the defendant is asking for the order to be discharged, and what the implications would be for them and their household if it was not discharged. If the defendant complied with the payment or other terms under a suspended possession order, they should include this in their application.

The court is likely to refuse an application to discharge a possession order if the defendant breached the terms of a suspended possession order without a good reason.

What happens when the court receives the application

The court normally sets a hearing to deal with the application. The court serves a copy of the defendant's application on the claimant with at least three days' notice of the hearing.[8]

A hearing might not be necessary if the:[9]

  • claimant agrees to the defendant's proposed order

  • claimant and defendant agree a hearing is not necessary

  • court decides a hearing is not necessary

The court refers to the defendant as the applicant and the claimant as the respondent.

The defendant must attend the hearing and be prepared to answer questions about their written evidence. If they do not attend, the court can decide the application in their absence.[10]

After the possession order is discharged

If the court agrees to discharge the possession order, it no longer has any effect. That means the claimant would have to start the proceedings all over again if they want to evict the tenant or borrower. They must comply with the relevant pre-action protocols, issue the relevant notice, and issue a new claim in the courts.

The court could discharge only part of the claim. For example, they could discharge the claimant's right to evict the defendant, but leave the part about payment of arrears or court costs. This part of the claim could be enforced as a money judgment.

The defendant should read the order carefully to make sure they understand which parts are discharged.

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Last updated: 17 February 2022

Footnotes

  • [1]

    Sangha v Amicus Finance Plc (2020) EWHC 1074 (Ch).

  • [2]

    Zinda v Bank of Scotland [2011] EWCA Civ 706.

  • [3]

    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.

  • [4]

    Armstrong v Ashfield DC [2018] EWCA Civ 873.

  • [5]

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

  • [6]

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

  • [7]

    r.23.6 Civil Procedure Rules.

  • [8]

    r.23.7(1)(b) Civil Procedure Rules.

  • [9]

    r.23.8 Civil Procedure Rules.

  • [10]

    r.23.11 Civil Procedure Rules.