Section 21 possession procedure for assured shorthold tenancies
General possession procedure for assured shorthold tenancies (AST) and available defences to an order for possession.
Possession orders on section 21 proceedings
After a possession hearing in the county court, an order for possession will normally be granted if the court is satisfied that:
the tenancy is a valid assured shorthold
a valid section 21 notice has been served and has expired
any fixed term has expired
no further assured tenancy (whether shorthold or not) is currently in existence, other than an assured shorthold periodic tenancy (whether statutory or not)
for PRPSH tenants with fixed term tenancies of two years or more that started on or after 1 April 2012 and did not contain a break clause, the notice of non-renewal has been served and expired.
Using its general powers the court has the power to grant an adjournment before the court is satisfied that the landlord is entitled to possession. Once the court is so satisfied it has no power to adjourn proceedings, postpone/suspend an order for possession, or postpone the date of possession.
The court will normally order that possession will take effect in 14 days, although in cases of 'exceptional hardship' the date of possession can be postponed for up to 42 days after the making of the order. Exceptional hardship is not defined; in one case the Court of Appeal exercised such discretion and postponed a possession order for six weeks on the ground of the serious medical condition affecting the tenant.
The court cannot order possession until six months has elapsed from the start of a tenancy unless it is a demoted assured shorthold tenancy. Where the tenancy is a replacement tenancy (a tenancy that arises at the end of an AST and has the same landlord and tenant and the same or substantially the same premises as the previous one), the six month period is calculated from the start of the tenancy it replaces. A replacement tenancy could be a statutory or contractual periodic or a new fixed term tenancy.
Public law, human rights and discrimination defences
A public law defence based upon conventional judicial review grounds or a breach of human rights may be available against a private registered providers of social housing (PRPSH) landlord.
Currently, it is uncertain whether assured shorthold tenants of PRPSHs can raise a human rights defence in the County Court. Where the court states that it does not have the power to hear the defence, it can be asked to adjourn the possession claim pending an application for judicial review to the High Court.
An assured shorthold tenant of a private landlord who is seeking possession on mandatory grounds is not entitled to raise an Article 8 ECHR defence to prevent or delay the possession claim.
A disability discrimination defence may be available against a private landlord or a public authority.
Social landlords with assured shorthold tenants should follow the Pre-action Protocol for Possession Cases by Social Landlords before pursuing possession proceedings.
Last updated: 25 March 2021
s.9(1) Housing Act 1988; Civil Procedure Rules, rule 3.1(2).
s.9(6)(b) Housing Act 1988.
s.89(1) Housing Act 1980.
Chowdhury and another v Woodman  EWCA Civ 690.
s.21(5) Housing Act 1988 as amended by s.15 Anti-social Behaviour Act 2003.
s.21(5) to s.21(7) Housing Act 1988 as amended by s.99 Housing Act 1996.
s.9(1) Housing Act 1988.
ECtHR - FJM v United Kingdom, App No 76202/16 (29 November 2018); McDonald (by her litigation friend) v McDonald and others  UKSC 28.