Possession Order: Understanding Possession Hearings & Orders

Renting a property to tenants is normally a straightforward process, but sometimes, the need arises to evict tenants from the property. Landlords may need to serve a notice of possession and obtain a possession order to reclaim their property following an eviction. This is where possession orders and possession hearings come in. They may sound intimidating, but possession orders and hearings are quite easy to understand. This guide will lay out all the details and essential information for you, from what possession orders are, how to obtain a possession order, what possession hearings are, and more.

Table of Contents

What is a Possession Order?
When Do You Need a Possession Order?
How to Obtain a Possession Order
What is a Possession Hearing?
Applying for a Warrant of Possession

What is a Possession Order?

A possession order is a type of court order that a landlord can use to evict tenants from their property if they have an Assured Shorthold Tenancy (AST) and have not moved out following a Section 8 or Section 21 eviction notice. If the tenants have received one of these notices and remain in situ, further steps may be needed to reclaim the property.

When Do You Need a Possession Order?

Ideally, tenants will leave the property on the agreed date once the tenancy ends or after being served a Section 8 or Section 21 notice and the courts do not need to be involved. Keeping open lines of communication between landlord and tenant can go a long way towards avoiding any disputes or problems, but there are some circumstances where the courts need to be involved. If you are looking to obtain a possession order, chances are you are experiencing a problem tenant, whether they are in rent arrears, doing damage to the property, engaging in antisocial behaviour at the property or otherwise have broken the tenancy agreement.

There are a series of strict procedures that must be followed to reclaim property, even if it is because the tenants have broken the terms of the tenancy agreement. Failing to follow the legally prescribed procedure can result in you being accused of harassing or illegally evicting your tenant, which could be costly and harmful to your reputation. Consider using dispute mediation services to discuss problems with your tenant first – some local authorities offer this as a free service, alternatively, TDS Resolution, PRS Mediation Service and Resolve by Flatfair all offer mediation services tailored to the private rental sector.

How to Obtain a Possession Order

You can apply for a possession order by filing a possession claim. This can be done online on the Government website if you are aiming to reclaim the property due to rent arrears and have already served the tenant with a Section 8 notice, but for all other reasons, you must download and fill in the N5 paper form and the N119 ‘particulars of claim’ form. In either case, the cost for a possession order is £391. This is a cost that you can do without, so most landlords only resort to possession orders if all other avenues have been exhausted.

So now you have a possession order – now what? Next, the court will send you a notification that your claim has been issued and will be served upon your tenant. This gives the tenant a chance to respond and defend their right to stay in the property. It is possible that once they receive a possession order, the tenants will then leave the property and you can reclaim it without any further action. It is more likely that the tenant will submit a defence and a possession hearing will be held.

If your tenants have not left the property following a Section 21 notice and you are not hoping to claim rent arrears, you could apply for an accelerated possession order using form N5b. Some landlords choose this option and then pursue any rent arrears in a separate court claim to reclaim their property as quickly as possible.

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What is a Possession Hearing?

Following the lodging of a possession order, a court date will be announced usually 4-6 weeks following the application date. If you have applied for an accelerated possession order, it could be possible to gain possession without a court hearing. In a possession hearing, both the landlord and tenants will be required to attend. A District Judge will preside and will already know the details of the case, so the actual hearing should only take about 15 minutes.

There are several potential outcomes of a possession hearing, which are:

Outright possession order, where the tenant will be ordered to leave the property by a certain date, usually 14-28 days following the court hearing.
Suspended possession order, in which the tenant is issued a leaving date, but can stay in the property provided they keep up with rent payments and clear any rent arrears they have accrued.
Postponed possession order, which is similar to a suspended possession order but without a specified leaving date if the rent and arrears are not paid.
Money judgements, where in addition to one of the above, the tenant is ordered to pay back rent arrears to the landlord, plus court fees and other legal costs.

The judge could also adjourn the case if more information needs to be gathered or dismiss the case entirely if the tenant has since cleared the rent arrears, the landlord does not attend the court date or has not followed proper procedure during the eviction process. This could even result in the judge ordering the landlord to cover any legal fees incurred by the tenant.

It is possible for either party to appeal the judge’s decision if they feel it is unfair and can show that the decision was wrong/ there is only a short window for appeals of 21 days, so contacting a solicitor or legal professional who specialises in housing law is important to make sure you have grounds for an appeal.

Applying for a Warrant of Possession

Following the possession hearing, a landlord can ask the court for a warrant of possession if the tenant still has not left the property by the date specified. This also applies in the case of suspended possession orders if the tenant has not kept up with rent payments and arrears. A warrant of possession can be requested using form N325, or if the original possession order was obtained online, the warrant can be obtained from the same online possession claim service. The cost for a warrant of possession is £143.

The court will then confirm the warrant has been issued and send a notice to the landlord and tenant, to inform them. Bailiffs will be allocated and they will have an appointment to go to the property and repossess it – the details will be confirmed in the issue of the EX96 form. The landlord is required to complete and return a slip included with the EX96 form and complete the EX97A risk assessment form informing the bailiffs of any risks they may encounter when seizing the property. Completing all of the paperwork above promptly is recommended as if it is late, the bailiff appointment could be cancelled. You should also arrange for a locksmith to attend, both to help the bailiffs access the property and to change the locks afterwards.

Some landlords choose to apply for a writ of possession, which gives a High Court enforcement officer the power to evict the tenant. This costs more but can be quicker than waiting for a bailiff appointment. It costs a further £156 plus the High Court enforcement officers fees, so it should be carefully considered if this is worth doing.

In an ideal world, none of this will be necessary, and you will have professional and successful relationships between yourself and your tenants, but just in case, this should help provide some helpful information just in case you need to get the courts involved with an eviction. Always consult with a legal professional before going forward with any eviction proceedings, and if a tenant is engaging in illegal or antisocial activity, consider your safety first – don’t try and enter the property yourself, but contact the police and local authorities in the first instance.

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