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A common problem with seeking a possession order from the court is establishing the validity of notices and the many adjournments that can occur.
This article is guidance about adjournments and postponement of possession.
A landlord can use the accelerated possession procedure when they serve a section 21 'no fault' 2 months' notice and has a copy of the written tenancy agreement. This usually does not involve a hearing. Upon reading the papers and any defence filed by the tenant, the judge has the following options:
If the judge is not satisfied that the landlord served the claim form or the judge is not happy that the claimant landlord is entitled to possession, then the court must:
If the court directs that a hearing should be called, the court must give all parties not less than 14 days' notice of the hearing [55.16(3)]. Unfortunately, in this case of a hearing being called, there is no guide as to when the hearing should occur.
Commonly if a landlord's claim is refused, the order from the court will often say "claim dismissed" or "claim refused". This is the incorrect wording because, as shown above, Rule 55.16(1)(c) gives the court the power to "strike out" the claim, and there is no power to dismiss or refuse the claim. This wording is critical because Rule 55.16(4) allows the landlord to restore the claim:
(4) Where a claim is struck out under paragraph (1)(c) -
(a) the court will serve its reasons for striking out the claim with the order; and
(b) the claimant may apply to restore the claim within 28 days after the date the order was served on him.
However, a claim that has been dismissed or refused would require the landlord to either set aside the order or to appeal to a higher court, which can involve lengthy delays.
A landlord is therefore well advised if the order uses the words "dismissed" or "refused" when making an application to restore to seek permission to read the words dismissed or refused as the words "struck out", allowing the landlord to make a much simpler application to restore.
We have done this previously, and judges have allowed the claim to be restored. To make an application to restore, a landlord should make a formal application on form N244.
Where the court makes a possession order without a hearing, then either party may apply to have the order set aside or varied within 14 days of service of the order [Rule 55.19(a)] or the court may set aside or vary the order of its initiative [55.19(b)]. The order for possession should allow the tenant no more than 14 days [s89 Housing Act 1980], but the court may authorise up to six weeks in the case of exceptional hardship (see later for discussion on section 89).
When completing the accelerated possession claim form, the form allowed you to insist on a hearing should the tenant make an application to seek postponement of longer than 14 days for possession.
Therefore, assuming you requested a hearing and if the order allowed the tenant longer than 14 days, you need to apply to the court to vary the order, reducing the time allowed to 14 days. There are two ways a court deals typically with an application by a tenant to set aside or vary a possession order:
(1) They may set aside the order immediately and arrange for a hearing to decide the issue. or
(2) They may notify the landlord of a hearing date for the actual set aside application.
The two options are very different. If the court sets aside the order without a hearing, then the landlord is unable to act further and is unable to execute the order (by requesting bailiffs) and must await any hearing called. Strangely, the court sometimes sets aside the order and makes no other directions. This means everything is on hold, so the landlord must make a formal application to set aside the set aside (that gets rather complicated, but we have had to do that on several occasions!)
However, if the landlord is notified of a hearing for the actual set aside application, then the possession order remains, and surprisingly the landlord may still execute the order by requesting bailiffs (authors note: xxx... insert case law that it is not a breach of quiet enjoyment if landlord executes order)
Under the accelerated procedure, when a hearing is held, the rules follow the same as if a section 8 notice had been served, and the rules of set aside as detailed above do not apply unless the tenant failed to attend. (because an order may only be set aside when it has been made without a hearing or if one party failed to attend).
A landlord will use the standard procedure if:
The standard procedure will always involve a hearing, which applies if the accelerated possession procedure has been used and a hearing is called in the circumstances discussed above.
After a possession order has been granted, the following rules apply Section 9 Housing Act 1988, Section 89 Housing Act 1980, Civil Procedure Rule 55.18.
After a possession order has been awarded (whether with or without a hearing) on mandatory grounds (notice to quit, section 21 notice or section 8 notice on ground 8), the court's powers to postpone further the date given for possession are minimal. A tenant can apply to defer possession where exceptional hardship would be caused. However, an application to delay possession must be made 'before' the date given in the possession order [CPR 55.18]
55.18
(1) Where the defendant seeks postponement of possession on the ground of exceptional hardship under section 89 of the Housing Act 1980, the judge may direct a hearing of that issue.
(2) Where the judge directs a hearing under paragraph (1) –
(a) the hearing must be held before the date on which possession is to be given up; and
(b) the judge will direct how many days' notice the parties must be given of that hearing.
(3) Where the judge is satisfied, on a hearing directed under paragraph (1), that exceptional hardship would be caused by requiring possession to be given up by the date in the order of possession, he may vary the date on which possession must be given up.
A tenant must act quickly if they intend to postpone possession because a court cannot hold any hearing after the date given for possession. Commonly, tenants will apply just before the bailiff attends to evict formerly. However, as shown above, the time to postpone has expired, and the court can hold no hearing to determine the issue.
Section 89 Housing Act 1980 The above deals with an application under section 89 Housing Act 1980, which reads:
89.- Restriction on discretion of court in making orders for possession of land. (1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order. ...
Such an order to postpone for greater than the fourteen days should only be made "on extremely rare occasion and when exceptional circumstances exist", per [Brandon L.J., Vandermolen v Toma (1981) 9 H.L.R. 91, 101, C.A.]; [Yates v Morris [1951] 1 .B. 77]; [Kidder v Birch (1982) 265 E.G. 773, CA] & [para 23.131.3 Woodfall Landlord & Tenant Part 4 Chapter 23 - The Rent Acts, Section 5. - Recovery of Possession].
In addition, in Bayatti v. Johnson [2004] EWHC 1057 (Ch), Mr Justice Peter Smith stated:
_"...but once I am satisfied, and indeed I am satisfied, that it is right to make an order for possession, my powers are governed by section 89 of the Housing Act 1980. Under those provisions, I can suspend a writ of possession for 14 days without cause and up to six weeks maximum if it will cause undue hardship. I do not see that Mr Johnson will suffer any undue hardship by the delay. He will suffer the hardship whatever day he is removed from the property because he says he has nowhere to go. That is not a factor which enables the court, in my judgment, to suspend the power exceptionally for up to six weeks, as otherwise, everybody who was faced with a possession order would make the same submission." _ [paras 31&32].
Exceptional is defined as surpassing what is common or usual & far beyond what is usual in magnitude or degree. There is no other authority for a tenant to apply to postpone the date for possession (or delay the bailiff, for that matter) other than under section 89 detailed above. There can be confusion with section 9, Housing Act 1988, which governs the court's powers for suspension and adjournment. However, this section does not apply to a possession order awarded on mandatory grounds (section 21 or section 8, ground 8). [s9(6) Housing Act 1988]
9.- Extended discretion of court in possession claims.
(1) Subject to subsection (6) below, the court may adjourn for such period or periods as it thinks fit proceedings for possession of a dwelling-house let on an assured tenancy.
(2) On the making of an order for possession of a dwelling-house let on an assured tenancy or at any time before the execution of such an order, the court, subject to subsection (6) below, may-
(a) stay or suspend execution of the order, or
(b) postpone the date of possession, for such period or periods as the court thinks just.
(3) On any such adjournment as is referred to in subsection (1) above or on any such stay, suspension or postponement as is referred to in subsection (2) above, the court, unless it considers that to do so would cause exceptional hardship to the tenant or would otherwise be unreasonable, shall impose conditions with regard to payment by the tenant of arrears of rent (if any) and rent or payments in respect of occupation after the termination of the tenancy (mesne profits) and may impose such other conditions as it thinks fit.
(4) If any such conditions as are referred to in subsection (3) above are complied with, the court may, if it thinks fit, discharge or rescind any such order as is referred to in subsection (2) above.
(5) In any case where-
(a) at a time when proceedings are brought for possession of a dwelling-house let on an assured tenancy, the [tenant's spouse or former spouse, or civil partner or former civil partner, having home rights] [ under Part IV of the Family Law Act 1996], is in occupation of the dwelling-house, and
(b) the assured tenancy is terminated as a result of those proceedings, the spouse or former spouse [, or the civil partner or former civil partner] so long as he or she remains in occupation, shall have the same rights in relation to, or in connection with, any such adjournment as is referred to in subsection (1) above or any such stay, suspension or postponement as is referred to in subsection (2) above, as he or she would have if [those home rights]4 were not affected by the termination of the tenancy.
(5A) In any case where- (a) at a time when proceedings are brought for possession of a dwelling-house let on an assured tenancy-
(i) an order is in force under section 35 of the Family Law Act 1996 conferring rights on the [former spouse or former civil partner of the tenant] , or
(ii) an order is in force under section 36 of that Act conferring rights on a cohabitant or former cohabitant (within the meaning of that Act of the tenant.
(b) that [former spouse, former civil partner, cohabitant or former cohabitant] is then in occupation of the dwelling-house, and
(c) the assured tenancy is terminated as a result of those proceedings, the [former spouse, former civil partner, cohabitant or former cohabitant] shall have the same rights in relation to, or in connection with, any such adjournment as is referred to in subsection (1) above or any such stay, suspension or postponement as is referred to in subsection (2) above as he or she would have if the rights conferred by the order referred to in paragraph (a) above were not affected by the termination of the tenancy. ]
(6) This section does not apply if the court is satisfied that the landlord is entitled to possession of the dwelling-house-
(a) on any of the grounds in Part I of Schedule 2 to this Act; or
(b) by virtue of subsection (1) or subsection (4) of section 21 below.
"... the court's task is simply to satisfy itself whether the original possession order was one made on mandatory grounds or one made on discretionary grounds, recognising that if it were the former, then the court has no power to accede to the tenant's application [to suspend the warrant]..." [Capital Prime Plus Plc v Willis (1999) 31 H.L.R. 926]