Home Page > Property Law Library > Possession claims > Orders for possession

Home Page
Contact
Editorial Team

Protection from Eviction Act
Trespassers
Bankruptcy
Discrimination defences
Human Rights Act defences
Orders for possession
Warrants
Suspending warrants
Setting aside

Current page






Orders for possession

This page deals with the following topics
  • Adjourned orders
  • Consent orders
  • Effect of order on homelessness application
  • Suspended orders
  • Postponed orders - should they still be made in assured tenancy cases now that the HL has said that the tenancy comes to an end only when the order is executed?
  • Injunctions and possession orders
  • Second possession orders

"Adjourned orders"

Anti-social behaviour - claim adjourned on undertaking

Hastoe Housing Association Ltd v Ellis
[2007] EWCA 1238

The housing association brought possession proceedings based on the tenant's nuisance. There were negotiations which resulted in the parties asking the court to make an order in which the defendant gave an undertaking in relation to the nuisance and which continued as follows:
    "And the Court accepted her undertaking - the Court ordered that the undertaking will remain in force until 4:00pm on 17 May 2009 or further order and that the possession proceedings be adjourned generally with liberty to restore and if not restored by 18 May 2009 will be struck out".
The trial judge refused to make an order sought failing to appreciate that the adjournment sought was pursuant to a compromise of the action rather than a simple adjournment of the trial for two years! The Court of Appeal held that the judge should have made the order which was a perfectly proper order to make and which was permitted by the terms of s 9 of the Housing Act 1988, the relevant parts of which provide as follows:
    "(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."

Consent orders

Baygreen Properties Ltd v Gil
[2002] EWCA Civ 1340

The court may only make an order by consent where there is an express or implied admission by T of the grounds relied upon by L. The best method of ensuring that the consent order is valid is to set out the admissions in the order. The judge at the hearing did not hear any evidence and failed to ask the tenant whether or not she admitted the arrears claimed. The consent order was set aside.
    "The crucial point is that, in order for the court to have jurisdiction in a case where there is a consent order, the relevant admission, whether express or implied, must be clearly shown. If the true explanation for the consent order may simply be that there was a compromise between the parties, it may well be that it will not be possible to imply the relevant admission. The moral of the story is perhaps that, in all these cases, it is desirable that the consent order should spell out, in express terms, the admission, or, where for some reason that does not happen, the court should ask the tenant what admissions are being made, so that there is no room for confusion or doubt in the future." (Clarke LJ).

Effect of possession order on homelessness application

Arrears cases - effect of possession order

Green v London Borough of Croydon
[2007] EWCA Civ 1367

In this case a local authority in deciding whether or not applicants for housing had been rendered intentionally homeless had relied upon the decision of the district judge in a possession claim that there were rent arrears. There was some scope for arguing that the judge was wrong about that and the applicants argued that the authority should have looked into the matter further before treating them as intentionally homeless. The argument was rejected. The authority was entitled to rely upon the judge's decision and it could not be said that they had failed to make all such enquiries as were necessary (as required by s184(1) of the Housing Act 1996) when coming to its decision on the question of its duty in relation to their homelessness.

The case highlights the importance of tenants making sure that if they wish to dispute any suggestion of arrears that they should do so during the possession claim.


Postponing and suspending possession orders

Suspended orders – N28

The standard county court form for a suspended order for possession is N28. Under that order possession is ordered to be given on a certain date but enforcement of the order is suspended so long as the tenant complies with the conditions of the order. The full wording of the relevant part of Form N28 reads as follows:
    ".. and the court orders that
      1. The defendant give the claimant possession of [address] on or before [date].
      2. The defendant pay the claimant £.. for arrears of rent.
      3. The defendant pay the claimant's costs of the claim of £....
      4. The defendant pay the total of £... to the claimant on or before [date].
      5. This order is not to be enforced so long as the defendant pays the claimant the rent arrears and the amount for use and occupation [and costs, totalling] £…… by the payments set out below in addition to the current rent.

      Payments required
      [£….. on or before and]
      £…. per [week/month], the first payment being made on or before [date]."
In the case of a secure tenancy (and until the HL case of White v Knowsley Housing Trust it used to be thought in the case of an assured tenancy) the effect of the words "The defendant give the claimant possession of [address] on or before [date]" in paragraph 1 of the order is that the tenancy comes to an end, and the tenant becomes a tolerated trespasser, on the date given for possession (whether the tenancy is secure or assured). This is the case even if he keeps to the terms of the suspension; with all the adverse consequences that then arise such as loss of the right to buy, disrepair problems etc.

Postponed orders – N28A

Given the problems with suspended possession orders the Court of Appeal in Bristol City Council v Hassan [2006] EWCA Civ 656 suggested an alternative form of order that will keep the tenancy alive, ie. the "postponed order". The form for a postponed order for possession is N28A and is in the following terms:
    1. The defendant is to give up possession of [address] to the claimant.

    2. The date on which the defendant is to give up possession of the property to the claimant is postponed to a date to be fixed by the court on an application by the claimant. The defendant’s tenancy of the property will continue until that date.

    3. The defendant must pay the claimant £[_____] for rent arrears and £[_____] for costs. The total judgment debt is £[_____] to be paid by instalments as specified in paragraph 4 below.

    4. The claimant shall not be entitled to make an application for a date to be fixed for the giving up of possession and the termination of the defendant’s tenancy so long as the defendant pays the claimant the current rent together with
    instalments of £[_____] per week towards the judgment debt.

    5. The first payment of the current rent and the first instalment must be made on or before [date].

    6. Any application to fix the date on which the defendant is to give up possession may be determined on the papers without a hearing (unless the district judge considers that such a hearing is necessary).

    7. This order shall cease to be enforceable when the total judgment debt is satisfied.
Which order: suspended or postponed?

The courts therefore have a choice between making a standard N28 suspended possession order, which will bring the tenancy to an end on the date stated for possession and thereby create a "tolerated trespasser" and the new N28A, which will not fix a specific date for possession. In Hassan, Brooke LJ (at para 43) said this about the choice open to the courts:
    "In this judgment we have been concerned only to identify the terms of an order for postponement of possession that a court has power to make. What order the court will in fact make in any case will be a matter for the discretion of the judge on that occasion. If a tenant has a particularly bad record of payment, for instance, but is not yet deserving of an outright possession order, the court might wish to make an order along the lines of the current form N28"
The postponed order imposes an extra burden on landlords in that it requires an extra stage in the process, ie. the application to fix the date for possession before the order for possession can be enforced (see below). However, postponed orders have become standard particularly in relation to secure tenancies.

Whether or not they should still be made in relation to assured tenancies now that the HL has held that an assured tenancy does not come to an end until the tenant actually gives up possession (see here) is not clear. In favour of returning to suspended orders is the argument that the postponed order was only created to deal with the tolerated trespasser problem and the fact that such orders cause a substantial increase in workload and expense both for the courts and social landlords. On the other hand postponed orders do give tenants, particularly vulnerable tenants, a final notice before enforcement steps are taken.

Fixing the date for possession

If the tenant does not pay the sums stated in accordance with the order the landlord may apply to have a date fixed for possession. The procedure is set out in PD 55, para 10. It applies whether the tenancy is a secure or assured tenancy. The key elements are as follows:
  • The landlord must give the tenant 14 days notice of its intention to apply for a possession date and the application must be made with 3 months. The notice must contain specified information.
  • The landlord’s application for a possession date is made by filing an application notice in accordance with CPR 23, including the issue fee but without serving it on the tenant.
  • The application will normally be determined, without a hearing, by the district judge fixing possession for the next working day. However, the district judge has power to fix a date for the application to be heard and to direct service of the application notice and supporting evidence on the tenant.

Anti-social behaviour - procedure for fixing a date for possession

Wandsworth London Borough Council v Whibley
[2008] EWCA Civ 1259

Summary

Where a postponed order for possession has been made and subsequently there are disputed allegations of nuisance it is not appropriate to fix a date for possession by way of a summary determination on the papers.

Facts

The council had obtained a postponed possession order against T on the grounds of rent arrears and nuisance (the cultivation of cannabis). The order only referred to the rent arrears. (It was subsequently amended to include reference to the nuisance). The council alleged that T had committed further acts of nuisance and applied to the court for a date for possession. While they mentioned that T denied the allegations they asked for a summary paper determination. The District Judge refused, as did the Circuit Judge, to fix a date for possession. Instead directions were given so that the allegations could be properly examined.

The Council claimed in its appeal that its object, then and now, was to secure a ruling that, save in quite exceptional cases, county courts should give summary judgment without hearing evidence on applications to set a date on a postponed possession order.

Decision

Where there are issues that needed resolving it is the court’s obligation to examine them properly. In this case a summary paper determination was not appropriate. Sedley LJ at para 12:
    “… if, on being notified of the impending application and invited to respond, the defendant remains silent or puts in a plainly spurious or irrelevant response, an order may properly be made summarily. But if, as is more probable in nuisance cases, an issue is raised which is capable of affecting the court's decision, justice will require the defendant to be given an opportunity to put his or her case. The court will of course be astute not to let merely fictitious or obstructive responses impede a summary disposal; but, inconvenient though it will be for the lessor and for a time nightmarish for the neighbours, it is not permissible for a tenant who has a possible tenable answer to lose his or her home unheard. How the evidence is to be taken is governed by principles of law on which it is not necessary to embark here, but which permit the use of hearsay and enable most such hearings to be expeditiously conducted. Everything depends, both in arrears cases and in nuisance cases, on a judicial appraisal of how the issues can be fairly and economically determined.”
Comment

While this decision is not surprising, there is a useful indication as to the applicability of 55 CPR PD 10 to cases other than rent cases and the appropriate procedure that may be adopted when an application is made to fix a date. Earlier on in the paragraph referred to above, Sedley LJ stated
    “Arrears are ordinarily a matter of record, and any dispute as to the accuracy of the lessor's records will commonly depend on the defendant's own records. By the time the application to fix a date for possession comes before a district judge it should be apparent whether there is a triable dispute, and [55 CPR PD 10] makes it clear that it is only where there is such a dispute that the district judge should direct a hearing.”

Injunction and possession order

Medina Housing Association Ltd v Case
[2002] EWCA Civ 2001

The judge made a possession order and granted an injunction - restraining a breach of the term of the tenancy requiring her not to behave in anti-social manner towards others in the locality - to continue for a period of five years. He did so because he considered that there was a continuing risk that she would behave in anti-social way towards people living in the area.

Held: By the CA that the judge had no power to order an injunction that would have effect beyond the term of the tenancy.
    "An injunction is granted in order to prevent future breaches of contract. The court has no power to grant an injunction which provides rights to a party that are not contractual rights unless a claim in tort can properly be made by that person. It is not suggested, nor could it be suggested that the respondent would be entitled to an injunction in tort in respect of these matters. Therefore it seems to me that once one reaches the stage where the contract comes to an end (as it would do with the grant of possession) there is no right in the respondent to be protected by the grant of an injunction".
(But see now the powers available to various social landlords under the Anti-social Behviour Act 2003)


Second possession order

Manchester City Council v Finn
[2002] EWCA Civ 1998; [2003] HLR 41.

The court can make an immediate order for possession on one ground even though there is an existing suspended order for possession on another ground. It would be absurd to require a second set of proceedings, which would be unnecessarily wasteful of costs. The original order for possession related to rent arrears, which was suspended on payment of the current rent plus 2.60 per week off the arrears. The payments were being made so that the suspension remained in force. Subsequently there were breaches of the tenancy agreement relating to use illegal activity at the premises.

In making such an order the court should have regard to the guidance in Sheffield City Council v Hopkins [2001] EWCA Civ 1023 - in particular the requirement that the tenant to be given clear notice of the new allegations being made.

Back to top


If you would like to subscribe to the full monthly update please click below.

Options
Monthly Updates From £207 + VAT (1 year)
(Free for charities and students)