Defendant's application to vary a possession order

The process a defendant must follow when applying to court to vary the terms of an order made in possession proceedings.

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 can the defendant apply to vary a possession order?

The defendant can apply to the court that made the possession order to vary the terms at any time. Terms that can be varied include the payments under a suspended possession order, or the date for the defendant to give up possession.

Terms that can be varied

The defendant could apply to vary the payments under a suspended possession order if they can no longer afford it, due to a change in their circumstances since the order was made.

The defendant could apply to change when arrears are due to be paid. For example, a defendant who is paid four-weekly could apply to vary the order so that their rent arrears payment falls due on the date they are paid.

A mortgage borrower could apply to vary the date to give up possession in an outright possession order, to allow them more time to sell the property.

The court has the discretion to vary an outright possession order to a suspended possession order, as long as the type of claim allows it to suspend possession. This is only normally possible if the defendant did not attend the court hearing to ask for possession to be suspended.

The court normally only has the power to vary the terms of an order made against a tenant on a discretionary ground, or against a mortgage borrower.

Terms that cannot be varied

The court has very limited powers to vary an order made against a tenant on a mandatory ground. For example, it cannot vary an outright possession order made on a mandatory ground to a suspended possession order.[2] If the order does not state which ground it was made under, the court can treat it as though it was under a discretionary ground.[3]

The court cannot normally vary the contract between the defendant and the claimant. It cannot change the date the rent or mortgage payment falls due, or the amount of the regular payment. A mortgage borrower can apply for a time order, which gives the courts the power to make changes to their contractual payment.[4]

The courts are reluctant to vary terms that have been agreed by the claimant and defendant and included in a consent order.[5]

Apply to vary payment terms

The defendant can apply to vary payment terms under a suspended possession order if their circumstances have changed and they can no longer afford the payments.[6].The court can normally only vary the amount to be paid towards arrears, not the ongoing contractual payment.

What counts as a change of circumstances is not defined, but it could include:

  • a reduction in household income

  • another person joining the household

  • the need to pay another priority debt, for example, a court fine

Apply to vary payment terms ahead of a Debt Relief Order

A tenant who has decided to apply for a Debt Relief Order (DRO) might need to apply to vary the payments under their suspended possession order.

Rent arrears are a qualifying debt in a DRO. A DRO applicant cannot normally pay off qualifying debts once their application is approved. The Insolvency Service has made an exception for paying rent arrears if the tenant is at risk of losing their home.[7] The court can make an order for payment of rent arrears up to the amount of the DRO applicant's disposable income, which can be up to £75 per month.[8]

If the payments under a suspended order are under £75 per month and the applicant can afford this then they do not need to apply to vary the order.

If the payments are more than £75 per month then the applicant must make an application to vary before the DRO is approved. Once the DRO has been approved, the court has no power to make an order for repayment of rent arrears.[9]

If the payments are not varied ahead of the DRO application, the tenant will be forced to breach the terms of the suspended possession order if the payments are more than £75 per month.

The tenant could apply to vary the terms of the suspended possession order to pay rent only, and nothing towards the arrears. They should get specialist advice about the risks before making this application.

Apply for a time order to vary mortgage payments

In some cases, a mortgage borrower could apply for a time order to vary the payments under a suspended possession order. This allows the court to consider reducing the contractual payment. The borrower should get specialist advice before making an application for a time order.

Apply to vary an outright possession order to a suspended order

The court has the power to vary an outright possession order to a suspended possession order. A defendant could consider making an application to vary a possession order that was made in their absence, as an alternative to applying to set aside the order.[10]

The defendant cannot normally apply to vary an outright order if it was made after the court rejected the defendant's request for a suspended order. If the defendant wants to challenge the court's decision in their case they must apply for permission to appeal.[11]

The court has no power to suspend possession in cases where the order was made against:

  • a tenant on a mandatory ground

  • an assured shorthold tenant under section 21 of the Housing Act 1988

  • a demoted tenant

  • an introductory tenant

  • a family intervention tenant

  • an occupier with basic protection

  • a licensee

After the tenant breached a suspended order

A defendant who has breached the payment terms under a suspended order is at risk of the claimant applying for a warrant of possession to evict them. To prevent this, the defendant could apply to suspend the order.

The defendant must give a good reason why the court should suspend the order again, and not just wait for the claimant to apply for a warrant. For example, if their benefits were interrupted, but they have caught up with payments since the payment terms were breached.

Apply to postpone the date for possession

The defendant can apply to put off the date after which the claimant can apply for an eviction warrant. This is only normally available if the claim was:

  • against a mortgage borrower

  • brought on discretionary grounds against a tenant

The court can postpone the date for possession indefinitely. It could order the defendant to keep to terms in the meantime, for example, that they keep paying their regular rent or mortgage instalment.

Restrictions on postponing the date for possession

The possession order gives a date for possession. This is usually 14 days when it is made against a tenant:

In these cases, the court can postpone the date for possession for up to 42 days from the date the order was made, and even then only in cases of exceptional hardship.

The restrictions on postponing the date for possession also apply to orders made against introductory, demoted, or family intervention tenants.

Postpone the date for possession to get time to sell

A mortgage borrower can ask for more time if they want to sell the property themselves. A borrower is often able to get a better price than the lender, meaning they will get more of their equity back.

The court will normally only grant more time to sell if the property is worth more than the mortgage debt, and there is a reasonable prospect of the sale going ahead. A borrower who makes an application for time to sell must be able to provide evidence of the proposed sale to the court.[12]

How the defendant makes the application

The defendant can contact the claimant to find out if they agree to change the payment terms. If they do, the defendant can tell the court about the agreement in the application. They should include the agreed terms, or a draft order where possible.

Apply to court on form N244

The defendant must apply to vary a possession order using form N244.[13] 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 vary the order, and why the order should be varied.[14] They should include the proposed terms, and explain why they will be able to comply with the varied order.

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 varied, and what the implications would be for them and their household if it was not varied. If the defendant complied with the payment terms under a suspended possession order until their circumstances changed, they should include this in their application.

Form N244 does not contain space for the defendant to show their income and expenditure. They can attach a financial statement to their witness statement as evidence of their ability to pay the proposed amount. Money Helper has an online budget planner the defendant can use. If the defendant's outgoings are more than their income, they could ask for help from a debt adviser.

The court is likely to refuse an application to vary a possession order to include payment terms the defendant's budget shows they cannot afford.

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.[15]

A hearing might not be necessary if the:[16]

  • 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.[17]

After the possession order has been varied

The new terms replace any old terms from the date the order is varied. If the defendant breached the old terms, for example by missing payments under a suspended possession order, the new varied order gives them a chance to start afresh.

The defendant could apply to vary the order again, if they have grounds. There are no set limits on how many times an order can be varied.

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If you are dealing with a tricky debt case and need help to find an answer, or you want a second opinion, call the helpline on 03300 580 404 or submit an online enquiry using the webform.

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Last updated: 17 February 2022

Footnotes

  • [1]

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

  • [2]

    s.89 Housing Act 1980.

  • [3]

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

  • [4]

    s.136 Consumer Credit Act 1974.

  • [5]

    Ropac v Inntrepreneur Pub Co [2001] LTR 10, Pannone v Aardvark Digital [2013] EWHC 686 (Ch).

  • [6]

    Lloyds Investment (Scandanavia) Limited v Ager-Hanssen [2003] EWHC 1740 (Ch)

  • [7]

    see page 10 version 16 DRO Intermediary Guidance Notes, The Insolvency Service, October 2016.

  • [8]

    part 2 schedule to The Insolvency Proceedings (Monetary Limits) Order 1986/1996 as amended by art 2(2)(b) The Insolvency Proceedings (Monetary Limits) (Amendment) Order 2021/673.

  • [9]

    A2 Dominion Homes v Godfrey [2011] EWCA Civ 813.

  • [10]

    r.3.1(7) Civil Procedure Rules.

  • [11]

    Bank of Scotland v (1) Pereira (2) Pain (3) Pain [2011] EWCA Civ 241; Collier v Williams [2006] EWCA Civ 20.

  • [12]

    Bristol and West Building Society v Ellis [1996] EG CS 74, CA.

  • [13]

    Some courts ask for a form N245, but this is only used for applications to vary instalments under a money judgment under r.40.9A Civil Procedure Rules - see minutes of Civil Procedure Rules Committee 5 April 2019, para 68.

  • [14]

    r.23.6 Civil Procedure Rules.

  • [15]

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

  • [16]

    r.23.8 Civil Procedure Rules.

  • [17]

    r.23.11 Civil Procedure Rules.