Possession proceedings process

To evict a tenant the landlord must follow a three stage process which involves a notice, a court claim for a possession order, and an eviction warrant.

This content applies to England

Possession proceedings for rented property

A landlord must follow a three stage process to evict a tenant from a rented property. They must:

  • give the tenant a valid notice

  • issue a court claim for a possession order

  • apply for a warrant to allow bailiffs to evict the tenant

The tenant may have a defence that allows them to remain in their home.

Part 55 Civil Procedure Rules sets out the process that must be followed in possession cases.

Some occupiers, such as lodgers, can be evicted without a possession order or warrant. They are called excluded occupiers.

There are different rules when a mortgage lender brings a possession claim against a homeowner for mortgage arrears.

Landlord's notice to the tenant

Most possession claims for rented property can only start once a valid notice has been given to the tenant and has expired.

The notice required depends on whether the tenancy is:

Use Shelter's tenancy status checker to establish what kind of tenancy or licence an occupier has.

Some types of tenancy require the landlord to give a specified legal reason to end the tenancy. These are called grounds for possession. Rent arrears and antisocial behaviour are examples of grounds the landlord can use. All grounds for possession are set out in legislation.

Other notices do not require the landlord to say which ground they are seeking possession under. A section 21 notice to end an assured shorthold tenancy is an example of a notice which does not give a ground for possession.

An occupier with basic protection is entitled to a valid notice to quit. The notice does not state a ground for possession. Occupiers with basic protection include a student living in halls of residence of a specified educational institution or a person housed in temporary accommodation by the local authority.

The occupier does not have to leave their property when the notice period expires. The landlord must issue a claim for a possession order and apply for an eviction warrant to force them to leave.

Landlord starts the possession claim

To start a possession claim, the landlord must complete a claim form and send it to the County Court. The form can be sent to the court by post or completed online using the Possession Claims Online (PCOL) process.

Possession Claims Online can only be used when the ground for possession is rent arrears.

The landlord must post the claim form to the court if the:[1]

  • ground for possession is not rent arrears

  • claim is based on a section 21 notice

  • tenant is a child or a 'protected party'

A protected party is a person who needs a litigation friend because they lack the mental capacity to defend court proceedings.[2] The GOV.UK website has a guide with more information about litigation friends.

Claim form and supporting documents

A standard possession claim is issued on form N5.

If the landlord has started a claim using the accelerated procedure based on a section 21 notice for an assured shorthold tenant, the claim is issued on form N5B.

Particulars of claim

A landlord using the standard procedure (not accelerated possession) must complete and send particulars of claim. They provide more details about the case than the claim form. The particulars of claim are submitted on form N119.

The particulars of claim must include details of the property the claim is about, including information about who is living there.

The particulars must specify the:[3]

  • tenancy type

  • amount of rent payable

  • reason for seeking possession

  • steps taken to recover any rent arrears

They must confirm the appropriate notice has been given and the date it was given.

The particulars of claim must state the ground or grounds the landlord seeks to rely upon, if grounds are required.[4]

The court has the discretion to allow a claim that was not issued correctly to proceed. The claim could be adjourned for the landlord to correct the error.

Statement of truth

The claim form and particulars of claim must be verified by a statement of truth signed by the landlord or their legal representative.[5]

Service of the claim form and particulars

The court usually sends the claim form to the tenant by first class post, though it may choose another method of service such as personal service.[6] The date of service is specified in the Civil Procedure Rules as the second day after the date of posting.[7] It does not matter when the claim was actually received.

The claim form and particulars of claim must be served on the tenant at least 21 days before the hearing date.[8]

Tenant's defence form

A tenant who wants to defend the claim for possession must file a defence within 14 days of receiving the claim documents.[9] A defence is filed by sending it to the court.

The defence must be in the court issued form N11R for a standard possession claim, or form N11B for a claim under the accelerated procedure.[10]

Possession claims online (PCOL) allows the tenant to file their defence online for claims that have been issued using PCOL.

Offer to pay

Form N11R can be used to make an offer of payment for claims on rent arrears grounds. Any offer must demonstrate that the tenant will be able to pay their ongoing rent plus an amount towards the arrears.

The tenant could use an online budgeting tool to help calculate their outgoings. A budget planner is available on the Money Helper website.

Raise a dispute about facts or law

The form does not have much space to provide details of a dispute about the facts or the applicable law. Legal arguments can be submitted on a separate document headed with the parties' names and the claim number, clearly marked as an additional defence.

The tenant should submit a witness statement explaining their side of the case if there is a dispute about the facts of the case.

Tenant's defences to possession and counterclaims

The tenant should include details of the reason they are defending the proceedings on the defence form.

The tenant's defence must provide the court with evidence that either the:

  • landlord's ground has not been proved

  • tenant has a counterclaim against the landlord

This is called a substantive defence.

The court may strike out the defence and/or counterclaim if it has no real prospects of success.[11]

Landlord's ground not proved

The defences available depend on the tenancy and ground for possession.

A tenant can defend a possession claim if they can persuade the judge that the landlord's ground has not been proved. For a substantive defence to succeed the tenant must be able to convince the judge that their argument is more likely than the landlord's to be true. This is called the balance of probabilities. The judge examines the evidence from the landlord and the tenant when making their decision.

Claims on grounds of rent arrears can be defended if the tenant has a right to claim damages against the landlord, which could be set off against the arrears. This type of defence requires the tenant to file a counterclaim.

Counterclaims

Tenants who want to rely on a counterclaim should inform the court and the landlord on their defence form. Permission of the court is required to bring a counterclaim at a later stage.[12]

Common counterclaims in possession proceedings include claims for:

  • disrepair in the property

  • a breach of tenancy deposit protection rules

  • unlawful discrimination based on the tenant's disability

A counterclaim can prevent a possession order if the amount awarded to the tenant:

  • is more than the arrears

  • reduces the arrears below the level required for the mandatory rent arrears ground

  • reduces the arrears below a level where it is reasonable to make a possession order

A tenant who brings a counterclaim needs to file and serve their own particulars of claim. They will have to pay a court fee. If they are not successful, the tenant could be ordered to pay the landlord's costs. Tenants should speak to a housing specialist to find out what the counterclaim is likely to involve before they file it with the court.

Legal aid for defending a claim or bringing a counterclaim

Defences to possession claims are in scope for legal aid. If the tenant is eligible for legal aid, they can get free legal advice and representation from a solicitor or specialist housing adviser.

The solicitor dealing with the case must also assess the merits of the defence before applying for legal aid.

What happens at the court hearing

The court sets the date for the possession hearing when it receives the claim form. The hearing date should be between four and eight weeks from the date the claim was issued.[13]

For claims brought on or after 3 August 2020, the landlord must bring two copies of a notice setting out what they know about the impact of the Coronavirus pandemic on the defendant and their dependants.[14]

Most possession cases are dealt with in less than 10 minutes. If the case will take longer because the facts or law are disputed, the judge will usually adjourn the case and list it for a longer hearing or a trial.

At court, the tenant is called the defendant and the landlord is the claimant.

Accelerated possession cases against assured shorthold tenants use a specialised procedure. The case is dealt with by a district judge looking at the claim documents filed by the landlord. A hearing only takes place if the judge is not satisfied either that the claim form was served or that the claimant has not proved their right to possession under section 21.[15]

Housing possession court duty schemes

The duty solicitor provides advice to tenants before the hearing, and representation in the hearing. They can explain the terms of any order to the tenant afterwards.

Duty advice at court is in scope for legal aid. It is free to all tenants and is not means tested. The GOV.UK website has a list of duty advice providers.

The tenant should arrive at court in plenty of time to speak to the duty solicitor, unless they have made other arrangements to be represented. They should find the court usher as soon as they arrive, give their name, and ask to see the duty solicitor.

Addressing the judge

Most possession claims are heard by a district judge. A district judge should be addressed as Sir or Madam.

The landlord or their representative speaks first and tells the judge what order they want them to make. If the notice and the claim form have given more than one ground for possession, they must state which ground they rely upon.

The tenant or their representative speaks next. They can ask for the order they would prefer and provide relevant reasons for why the judge should not order possession.

Proving the ground for possession

After hearing from both sides, the judge decides whether the ground for possession is made out (proved). The judge could decide the ground is not made out because the:

  • notice is defective

  • tenant has a defence to the claim

  • landlord has not provided enough information to make a decision

Landlord proceeds on a mandatory ground

The judge must make a possession order if the landlord has proved their case on a mandatory ground. The tenant can argue the ground has not been proved, for example because there is a dispute about the facts of the case.

The tenant must tell the judge straight away if they have a defence to a mandatory ground. They can ask for an adjournment and permission for additional time to submit a written defence. This is at the discretion of the judge, but the request must be made before the mandatory ground can be proved.

The tenant may be able to defend a possession case on a mandatory ground if their human rights have been breached or if the landlord has unlawfully discriminated against them.

Landlord proceeds on a discretionary ground

The judge must decide whether it is reasonable to make a possession order if the landlord proves a discretionary ground.

The judge can take into account anything relevant to the case, including the reason for the possession claim, the tenant's conduct and the consequences of eviction for the household. They can also consider whether the tenant has made an effort to put things right since the claim was issued.

If the judge is not satisfied that it is reasonable to give possession, they could dismiss the claim altogether.

A possession order that has been made on a discretionary ground can be suspended if the judge is satisfied the tenant is likely to comply.

Orders the court can make

The judge makes an order at the possession hearing after hearing from the parties. Some options are only available if the claim has been brought on a discretionary ground.

Outright possession order

The judge can make an outright order if they are satisfied that the landlord has proved a mandatory ground, or it is reasonable to give possession under a discretionary ground.

If the claim is brought under the section 21 procedure for an assured shorthold tenancy, the judge must make an outright order if the landlord has followed the correct process.

The possession order gives a date for possession, usually 14 or 28 days from the date of the hearing.

The judge can delay the date for possession if the order is made on a discretionary ground. There is no limit set on the length of the delay. For claims on a mandatory ground and under section 21, the judge can delay the date for possession for up to 42 days in the case of exceptional hardship. Exceptional hardship is not defined in law.

Suspended possession order

A suspended possession order means the tenant can remain in their home as long as they comply with certain terms. The judge can suspend a possession order that was made on a discretionary ground. Suspended orders are commonly granted on terms that the tenant pays current rent and a fixed amount towards their rent arrears.

The landlord can apply for a warrant of eviction if the tenant breaches the terms of the suspended order.

Adjourn on terms

The judge can adjourn the claim on terms. This means no possession order has been made. It allows the tenant to demonstrate they can keep to payment terms or other conditions. This order is only available if the claim is brought on a discretionary ground.

The landlord can apply to reinstate the possession claim if the tenant fails to keep to the terms of the adjournment.

Adjourn to a fixed date

The judge can grant an adjournment to put off the decision about the case to a later date.

An adjournment could be granted to allow the tenant to:

  • complete a claim for benefits

  • get detailed legal advice about their defence

  • file a counterclaim

For claims brought on a mandatory ground, the court can adjourn in very limited circumstances and only before the ground for possession is proved.[16]

The new date is not usually set at the possession hearing. The judge makes a request to the court that the matter is to be relisted on 'the first open date after xx days'.

Directions for a trial

The judge can adjourn the case with directions for the landlord and the tenant. Directions tell the parties what they need to do next. They are usually given in when the court needs more evidence to make a decision about a case, or where the tenant has a substantive defence.[17]

Dismiss claim

The judge must dismiss the landlord's claim if they are not satisfied that the ground for possession has been met. They may also dismiss the claim if the notice has not been given correctly, or if a local authority or housing association landlord has not followed the pre-action protocol.

Money judgment

A money judgment is a court order for the payment of a debt. The landlord usually includes a claim for a money judgment if their claim is brought on rent arrears grounds. The money judgment can be enforced in the same way as any other County Court money claim, for example by a court bailiffs warrant to take control of the tenant's goods.

If the judge sets payment terms to deal with rent arrears, enforcement of the money judgment is suspended on the same terms.

Cost order

The tenant is usually ordered to pay some or all of the landlord's costs if a possession order is made. The court can set terms for payment of the costs. If the possession order is suspended, the payment of costs is suspended on the same terms.

The costs of a possession claim include the costs paid to the court, including the issue fee. The landlord might also have incurred other costs, especially if they have paid a solicitor to deal with the claim.

The tenant can argue they should not be liable for the landlord's costs if the claim is adjourned generally. The judge can exercise discretion to allow the costs if the possession claim was justified.

The tenant is not normally ordered to pay costs if the claim is dismissed.

Tenant's application to vary or set aside a possession order

After the possession order has been made, the tenant can apply to vary or set aside the order. The application is made to the County Court that dealt with the possession case. The tenant must pay a court fee for the application.

Vary an order

The court has the power to vary the terms of any suspended order where the order was made on a discretionary ground.

The tenant can apply on form N244 to court to vary payment terms under a suspended possession order if either:

  • they can no longer afford to pay due to a change in circumstances

  • the tenant did not attend court to provide evidence about their ability to pay

If the tenant attended court and the judge heard evidence about their ability to pay, they cannot make an application to vary the terms of an order without a change in circumstances. The tenant would have to appeal the decision of the judge.

Set aside an order

The tenant might have grounds to apply to court to set aside the possession order if it should not have been made.

When a possession order is set aside it is as if the order was never made. The landlord's claim is not automatically dismissed. There is usually a further hearing if the landlord chooses to continue the claim for possession. The court could strike out the landlord's claim if the tenant has provided enough evidence in their application to set aside.

An application to set aside is more likely to be successful if the tenant was not able to attend the possession hearing.

The tenant's application to set aside must be made on form N244. The tenant must submit a witness statement that explains why they did not attend the court hearing, and why the outcome would have been different if they had. The tenant must provide a good reason for not attending and should include any supporting evidence.

The tenant should make the application to set aside an order as soon as they can. The court may refuse the application if the tenant delays.

Tenant's appeal against a possession order

The tenant could appeal against a possession order. If the tenant's appeal is upheld, the original order is overturned. An appeal against a possession order is usually heard by a Circuit Judge in the County Court.

Successful appeals are brought on the basis that the judge has made an error or law or misapplied the law. It is sometimes possible for a tenant to appeal against a judge's exercise of discretion, but only if they have taken account of an irrelevant fact or not taken account of a relevant one.[18] The appeal court does not normally interfere with a judge's use of discretion, even if they would have made a different decision on the same facts.

Tenant's notice of appeal

The tenant makes an application for permission to appeal on form N161 to the court that made the decision to be appealed against. The application is called an appellant's notice. If the lower court refuses permission or if no application is made to the lower court, the application can be made to the appeal court.[19] In housing possession cases, the County Court is both the lower court and the appeal court.

The deadline for the tenant to file the appellant's notice is 21 days from the date of the order to be appealed.[20] If the appeal is late, the tenant must request permission to file their appeal late.[21]

Landlord's application to enforce a possession order

A landlord can enforce a possession order by applying to court for a warrant of possession. The application can be made if the tenant fails to leave the property by the date given in an outright possession order.

A landlord can also apply to enforce a suspended possession order where the tenant has not kept to the terms set out in the order. They do this by applying to court to fix a date for possession. After the date for possession has passed, the landlord can apply for a warrant of possession.

Permission of the court

When an outright possession order has been made the landlord does not have to obtain permission of the court before applying for a warrant of possession.

The landlord must obtain permission from the court to apply for a warrant if the tenant breached the terms of a suspended possession order made on grounds other than rent arrears. Permission is not required if the tenant breached the payment terms of a suspended possession order.[22]

The landlord must apply for permission from the court to enforce an order where six or more years have elapsed since the order was made.[23]

Notice of eviction

A notice giving the time and date of the eviction must be delivered by Enforcement Agents (known as bailiffs) to the premises 14 days before the eviction date.[24]

The court can dispense with the requirement to serve a notice, or change the time by which a notice of eviction must be delivered.

Execution of warrant

Enforcement Agents (bailiffs) can evict anyone they find on the premises, including occupiers who were not named on the original possession proceedings.

Tenant's application to stay or suspend an eviction warrant or writ

The tenant can apply to court to suspend or stay a warrant of possession at any time before the eviction is due to take place.

The application is made to the County Court if the warrant is due to be executed by County Court Enforcement Agents. The application must be made to the High Court if it is due to be enforced by a High Court writ of possession.

The application must be made on form N244 and supported by evidence, ideally in the form of a witness statement. The tenant can submit the application to court by email or by posting. Email is especially useful if there is not much time before the warrant is due to be carried out.

Suspend the warrant or writ

The court can grant an application to suspend a warrant on the same terms as they would be able to suspend a possession order, for example on payment of rent and arrears. That means it is not possible to suspend a warrant if the order was made on a mandatory ground.

Stay the warrant or writ

A stay of execution delays the enforcement of a court order, either to a fixed date or until a specified event has occurred.

The tenant can apply to court to stay the date for the warrant to be executed to a date in future. If the order was made on a mandatory ground, the court can only stay the date for up to 6 weeks from the date of the original possession order.

The court could stay a warrant until after another decision has been made. This could be a decision about an application to set aside or appeal the possession order.

Tenant's options after eviction

The defendant could still have options after the eviction has taken place.

Setting aside a warrant after execution

An application to set aside the possession order can still be made after the warrant has been executed. If the court sets aside the possession order, the warrant is also set aside. When an order is set aside it is as if the order was never made.

In cases where the tenant does not have grounds to set aside the possession order, a warrant can only be set aside after execution where it was obtained by fraud, or where there has been an abuse of process or oppression in the execution of the warrant.

Late appeals

The deadline for the tenant to file an appellant's notice (form N161) to bring an appeal is 21 days from the date of the order to be appealed.[25]

The tenant can apply for permission to appeal late. They must ask the court for an extension of time on their application.[26] The court can set a hearing to decide whether to grant the extension, or deal with it without a hearing.[27]

There is no deadline for asking the court's permission to appeal out of time. The more time has passed, the more likely it is that the court will refuse permission.

Last updated: 11 January 2022

Footnotes

  • [1]

    para 5.1 Civil Procedure Rules Practice Direction 55B.

  • [2]

    r.21.1(2)(b) Civil Procedure rules.

  • [3]

    para 2.1 Civil Procedure Rules Practice Direction 55.4.

  • [4]

    Bayliss v Martin; Places for People v Green, Sheffield County Court, [2008] 11 March 2008, unreported.

  • [5]

    r.22.1, r.22.2, Civil Procedure Rules; para 3.1 Civil Procedure Rules Practice Direction 22.

  • [6]

    r.6.4(2) Civil Procedure Rules.

  • [7]

    r.6.14 Civil Procedure Rules

  • [8]

    r.55.5(3)(c) Civil Procedure Rules.

  • [9]

    r.15.4 Civil Procedure Rules.

  • [10]

    para 1.5 Civil Procedure Rules Practice Direction 55A.

  • [11]

    r.24.2 Civil Procedure Rules.

  • [12]

    r.20.4 Civil Procedure Rules.

  • [13]

    r.55.5(3) Civil Procedure Rules.

  • [14]

    para 6.1 Civil Procedure Rules Practice Direction 55C.

  • [15]

    Civil Procedure Rules, Part 55 and Practice Direction 55; section 21 Housing Act 1988

  • [16]

    North British Housing v Matthews (2004) EWCA Civ 1736.

  • [17]

    r.55.8(1)(b) Civil Procedure Rules.

  • [18]

    Phonographic Performance Ltd v AEI Rediffusion Music Ltd [1999] 1 WLR 1507.

  • [19]

    para 4.1 Civil Procedure Rules Practice Direction 52.12.

  • [20]

    r.52.12 Civil Procedure Rules.

  • [21]

    para 3.2 Civil Procedure Rules Practice Direction 52b.

  • [22]

    r.83.2 Civil Procedure Rules, following Cardiff CC v Lee (Flowers) [2016] EWCA Civ 1034.

  • [23]

    r.83.2(3)(a) Civil Procedure Rules.

  • [24]

    r.83.8A Civil Procedure Rules.

  • [25]

    r.52.12 Civil Procedure Rules.

  • [26]

    para 3.2 Civil Procedure Rules Practice Direction 52B.

  • [27]

    para 3.3 Civil Procedure Rules Practice Direction 52B.