Court orders at a possession hearing

The court decides whether to grant an order for possession, usually at a possession hearing. It can decide the claim at the first hearing, or at a later hearing if the claim is adjourned.

For assured shorthold tenancies the accelerated possession procedure allows an order to be granted without a court hearing in certain circumstances.

In practice, the court has the following options:

• dismiss the claim for possession

• adjourn the claim for possession on terms

• make an outright order for possession

• make a postponed or suspended order for possession

The court could adjourn the claim to a fixed date in future, if it needs more evidence to decide the claim.

Dismissed claims

The court can dismiss a claim if it is not satisfied that a ground for possession has been established, or that it is not reasonable to grant possession.

A dismissed claim is a final order. A landlord would have to start a fresh possession claim to evict the tenant.

For claims on discretionary grounds, the court has the power to adjourn the possession claim for such period as it thinks fit.[1]

What is an adjournment?

An adjournment is an order by the court that proceedings are put off to a certain day in the future, or indefinitely.

Adjournment to a fixed date

The court can adjourn the claim and set a date for the claimant and defendant to come back to court. This usually happens because the court needs more evidence, or the parties need to file certain documents.

An adjournment to a fixed date might include terms. For example, the tenant pays their rent plus an amount towards the arrears each week. Keeping to the terms can lead to a more favourable outcome for the tenant when the case comes back to court. For example, the court might agree to adjourn the claim generally if the tenant has reduced their arrears.

Adjournment on terms

An adjournment on terms means the claim is adjourned indefinitely as long as the tenant keeps to the terms set out in the order. For example, the tenant pays their rent plus an amount towards the arrears each week.

The landlord can apply to restore the claim if the tenant does not keep to the terms. The court can then make a final order in conclusion of the claim.

The court order might state that the claim is struck out after a set period if the landlord does not apply to court in that time.

Adjourning claims on mandatory grounds or section 21

The tenant can only ask for an adjournment before the evidence is heard by the court in claims on mandatory grounds, or where the landlord does not need a ground. The court can use its general powers to grant an adjournment at this stage.[2]

The court has no power to adjourn proceedings once it is satisfied that the landlord is entitled to possession unless the tenant has a disability discrimination, public law or human rights defence.[3]

An outright order is made in conclusion of a possession claim if the claim was brought:

• under section 21

• on a mandatory ground, and the ground is made out

• on a discretionary ground, and the court has refused to suspend possession

Outright order on mandatory grounds

For claims on mandatory grounds and under section 21, the court must set the date for possession no later than 14 days after the making of the order, unless this would cause exceptional hardship to the tenant. If it would cause exceptional hardship, possession can be postponed for up to 42 days.[4] Exceptional hardship is not defined in law.

The courts often exercise their discretion in favour of the tenant and allow 14 days, or up to 42 days if appropriate. In some cases they might order 'possession forthwith' (immediate possession) or set the date for possession less than 14 days after the order is made.

Outright order on discretionary grounds

The court can order possession outright when a discretionary ground for possession is proved if the court considers that it is reasonable to grant possession, and it does not suspend the order.[5]

The 42 days postponement limit does not apply to claims on discretionary grounds. The court can exercise its discretion as to when the order will take effect.

The defendant can apply to vary an outright possession order to a suspended order, especially if something has changed since the hearing, or they did not attend to give evidence.

Read more about applying to vary a possession order on Shelter Legal.

For possession claims on a discretionary ground, the court can suspend an order for possession where it is satisfied that the ground for possession has been established and it is reasonable to make a possession order.[6]

Postponed possession orders have the same effect. Possession is suspended on condition that the tenant will in future meet the terms of the tenancy agreement and those that the court imposes.

Rent arrears

For possession claims on rent arrears grounds, the order must include conditions for the payment of the current rent and the arrears by the tenant, usually in the form of weekly or monthly instalments to pay off the arrears, unless this would cause exceptional hardship.[7]

The court has the power to make an order that allows the tenant to pay off the arrears over a long period,[8] but it should not extend it indefinitely. [9]

The courts often refer to the standard DWP deduction for legacy benefit claimants when setting an amount for repayment of rent arrears. This is five percent of the personal allowance, currently amounting to £4.24. Legislation does not set a minimum amount for repayment of arrears under a suspended possession order.

Cases other than rent arrears

In all other cases, the court can impose any conditions as it thinks fit.

For possession claims relating to serious antisocial behaviour a possession order should only be postponed or suspended when the following applies:

• the circumstances are exceptional

• there is evidence to demonstrate that the conduct has ceased

• the court is satisfied the conduct will not be repeated in the future

Unless the court is provided with evidence demonstrating real hope that an individual will change their behaviour in future, the landlord is entitled to an outright possession order.[10]

Basis for making a suspended possession order

The Court of Appeal confirmed that the making of a suspended possession order involves the exercise of court discretion and depends on the facts of each case. To provide guidance, the Court said that:[11]

• to be 'cogent', the evidence that there is a sound basis for hope that the antisocial conduct will cease in the future must be more than credible; it must be persuasive

• when deciding whether to suspend a possession order, the court must realistically focus on the future, not on the past

• the likelihood of actions by third parties is relevant when assessing whether there is a real hope of compliance by the tenant in the future, for example where a tenant with mental health problems is able to show that they will comply with the terms of a suspended possession order with the help and support of others

• dishonest evidence by the tenant alone does not prevent the court from suspending a possession order

• a court making a suspended possession order, rather than an outright order, should give adequate reasons as to why it has decided to exercise its discretion in each case

Non-compliance with a suspended order

The court fixes a date for possession on a suspended possession order. If the tenant breaches the term of a suspended possession order the landlord can apply to the court for a warrant of possession.

Court form N28 (not available to the public) provides a template of a suspended possession order for the use of the courts.

Non-compliance with a postponed order

The court does not fix a date for possession on a postponed order. If the tenant breaches the term of a postponed possession order the landlord must first give the tenant notice that they intend to apply to court to fix a date for possession. The court can decide whether to award a date for possession with or without a further court hearing. When a date for possession expires the landlord can apply to court for a warrant of possession.

Court form N28A (not available to the public) provides a template of a postponed possession order for the use of the courts.

Discharge of postponed or suspended possession order

The court can discharge a postponed or suspended order for possession under certain circumstances.

In addition to seeking possession, a possession claim may include a number of other claims, for example:

• a money claim for rent arrears

• an application for an injunction, for example where the tenant is alleged to have behaved badly

• an application for a demotion of the tenancy

• an unlawful profit order

Costs orders in possession claims

The tenant is normally ordered to pay the landlord's costs if a possession order is made, including where it is suspended. It can make an order that the tenant pays the costs if the claim is adjourned on terms.

Where the landlord's claim for possession is dismissed, the tenant can ask the court to order that the landlord pays their legal costs.

The amount of the court costs will depend on the type and complexity of the claim and on how much time has been spent on its preparation and presentation.

Read more about costs in possession proceedings on Shelter Legal.