Tenant defence to a landlord's claim for possession

Procedure for responding to a claim for possession and submitting a defence beforehand or during the hearing.

This content applies to England

Procedure when court receives the claim

When the court receive the landlord's claim form, it will fix a date for the possession hearing and put this date on the claim form.[1] This date should be between four and eight weeks from the date the claim was issued.[2]

The court can extend or shorten these time periods if appropriate.[3] In particular, the court should consider listing the hearing as quickly as reasonably possible if the tenant (or any person whom the tenant is responsible for) is alleged to have assaulted or threatened to assault the landlord, the landlord's staff or another resident in the locality. Similarly, the court should give consideration to listing the hearing early if the tenant (or any person whom the tenant is responsible for) is alleged to have caused or threatened to cause serious damage to the property or the home or property of another resident in the locality.[4]

Once the claim for possession has been issued and a hearing date fixed, the claim form and particulars of claim must be served on the tenant. This must be done not less than 21 days before the hearing date,[5] (unless the hearing date has been brought forward under the provisions above, in which case the documents must be served as soon as practicable). 

The court will usually undertake service but if the landlord chooses to serve the documents on the tenant, it must produce a certificate of service,[6] when attending the hearing.[7]

The tenant should receive the following from the court:

  • a copy of the claim form (with details of the hearing date on it)

  • the particulars of claim

  • a standard form of defence

  • guidance notes

Tenant's response - defending a claim

If the tenant plans to defend the claim for possession, they must file a defence with the court within 14 days of receiving the claim documents.[8] The tenant should include anything that they wish the court to consider in their defence.

If the tenant fails to do this, they can still put forward a defence at the hearing and the court will still consider this. However, the tenant may be ordered to contribute towards the landlord's legal costs (for example, the extra costs caused by an adjournment) if there is no good reason why a defence was not filed beforehand.[9] In any event, the defence should be filed as soon as possible after the 14-day time limit so as to mitigate the consequences of not filing it on time.

In a Court of Appeal case,[10] the court recorded the wrong address for the defendant which resulted in the claim form and supporting documentation being served at the wrong address. The tenant did not file a defence, or attend the hearing, and was unaware of the possession proceedings. The Court of Appeal held that service at the wrong address had been an 'error of procedure'[11] and the judgment in the claimant's favour was set aside. The circumstances of this case were unusual; an order for possession is not usually set aside due to the tenant's delay or late service of a defence.

If the tenant wishes to bring a counterclaim against their landlord (also known as a Part 20 claim), this should also be included in the response. The most common example of a counterclaim is for disrepair but issues such as harassment and personal injury may also be cited. If the tenant fails to include details of any counterclaim when they file the defence, the court's permission to do so at a later date will usually be required.[12]

Although a tenant would be advised to submit a counterclaim before the possession order has been made, it may be possible, with the court's permission, to raise a counterclaim at any point prior to enforcement of possession.[13]

The defence must be in the standard form:[14]

  • general defence: Form N11

  • accelerated possession procedure (assured shorthold tenancy): Form N11B

  • residential mortgage claim: Form N11M

  • claim for possession of a rented property: Form N11R

Alternatively, if the claim has been started using the Possession Claim Online (PCOL) service, the defendant can file a defence, or a defence and counterclaim, using PCOL.

Last updated: 25 March 2021

Footnotes

  • [1]

    Civil Procedure Rules SI 1998/3132 (as amended), Part 55, rule 55.5(1).

  • [2]

    Civil Procedure Rules SI 1998/3132 (as amended), Part 55, rule 55.5(3).

  • [3]

    Civil Procedure Rules SI 1998/3132 (as amended), Part 3, rule 3.1(2)(a).

  • [4]

    Civil Procedure Rules SI 1998/3132 (as amended), Practice Direction 55A, para 3.2.

  • [5]

    Civil Procedure Rules SI 1998/3132 (as amended), Part 55, rule 55.5(3)(c).

  • [6]

    Using Form N215.

  • [7]

    Civil Procedure Rules SI 1998/3132 (as amended), Part 55, rule 55.8(6).

  • [8]

    Civil Procedure Rules SI 1998/3132 (as amended), Part 15, rule 15.4.

  • [9]

    Civil Procedure Rules SI 1998/3132 (as amended), Part 55, rule 55.7(3).

  • [10]

    Nelson and Hanley v Clearsprings (Management) Limited [2006] EWCA Civ 1252.

  • [11]

    Under Civil Procedure Rules SI 1998/3132 (as ameneded), Part 3, rule 3.10.

  • [12]

    Civil Procedure Rules SI 1998/3132 (as amended), Part 20, rule 20.4.

  • [13]

    Rahman v Sterling Credit Ltd [2001] 1 WLR 496; Midland Heart Ltd v Idawah [2014] EW Misc B48, CC (Birmingham).

  • [14]

    Civil Procedure Rules SI 1998/3132 (as amended), Practice Direction 55A, para 1.5.