How to Apply for Reconsideration of Possession Orders

When a court grants a possession order in favour of a landlord, it legally requires the tenant to leave the property by a set date. Such orders are made after formal court proceedings following a landlord's claim for possession. However, tenants may have the right to ask the court to reconsider, vary, or set aside the possession order if there are valid legal reasons to do so. This article explains the options available, how to apply, the relevant procedures, time limits, and practical considerations for tenants and advisers.

What Is a Possession Order?

A possession order is a court order requiring a tenant to hand back the property to the landlord. It might be:

• Outright – the tenant must leave by a specified date, or
• Suspended – the tenant can stay if they comply with conditions (for example, paying arrears).

Possession orders may be made after different types of claims, including section 8 (grounds for possession) and accelerated section 21 claims for assured shorthold tenancies.

Grounds for Reconsideration of a Possession Order

Tenants can seek to have a possession order reconsidered through one or more of the following mechanisms:

1. Set Aside Order – Treats the original possession order as if it had never been made.
2. Vary Order – Changes the terms of the existing order (for example, altering the date possession must be given up).
3. Appeal – Challenges the legal correctness of the court's decision.

Each mechanism has specific procedural requirements and is suited to different circumstances.

Setting Aside a Possession Order

When You Can Apply

A tenant may apply to set aside a possession order if:

• They were unable to defend the original claim (for example, they did not receive the court papers).
• There was a procedural defect (for example, the claim was not properly served).
• There was a material mistake or a significant change in circumstances that the court did not consider.

The key premise is that the tenant had a real defence to the possession claim but was unable to present it at the original hearing.

How to Apply

To set aside the order, the tenant must:

1. Complete Form N244 – This is the standard court application form for changing a court order.
2. Explain the Grounds – Include a witness statement that details why the order should be set aside, such as not receiving the claim form or not being able to attend the hearing in person.
3. Provide Evidence – Attach documentary evidence supporting your case, such as medical records or proof of correspondence issues.
4. Pay the Fee or Apply for Remission – Unless eligible for fee remission, the appropriate court fee must be submitted with the application.

Applications are made to the county court that issued the original possession order.

Timing and Extensions

• For orders made without a hearing (for example, accelerated procedure), tenants usually have 14 days from receiving the order to apply to set it aside automatically.
• For orders made at a hearing, there is no fixed time limit, but the tenant should apply as soon as possible because delays can weaken the application.

Varying a Possession Order

A variation may be appropriate where the tenant is not challenging the fact of the order but seeks to alter its terms, such as:

• Changing a suspended possession date
• Adjusting conditions attached to the order (for example, payment terms)

This also uses Form N244 and typically requires evidence of changed circumstances or compelling reasons for the variation.

Appealing a Possession Order

An appeal is different from an application to set aside or vary. Appeals are made where the tenant believes the court made a legal error, such as misapplying the law or failing to consider relevant facts.

How to Appeal

1. Apply for Permission to Appeal – Use Form N161 to request the court's permission to appeal.
2. Submit Within Time Limits – Typically the appeal must be filed within 21 days of the possession order.
3. Grounds of Appeal – On the form and supporting documents, set out specifically why the decision was legally incorrect.

If the court refuses permission, the tenant can request an extension of time, but the longer the delay, the less likely the court is to grant it.

What Happens After Filing the Application

Once the application to set aside or vary is received, the court will:

• Serve a copy on the landlord (the claimant).
• Usually list a hearing to consider the application.
• If the landlord agrees, the hearing may not be necessary.

The tenant must attend the hearing and be prepared to answer questions about their evidence.

After the Order Is Set Aside

If the court sets aside the possession order:

• It is treated as if the original order was never made.
• Any warrant of possession that related to that order is discharged.
• The landlord's claim does not automatically end - the court may give directions for the case to proceed, such as requiring the tenant to file a defence.

Practical Considerations

Evidence Is Critical

Supporting documents like witness statements, correspondence records, medical evidence, and proof of service issues are key. Courts require evidence explaining not just why the tenant did not originally defend the claim, but also why they have a plausible defence.

Acting Promptly Matters

Delays in applying to reconsider, set aside, or appeal a possession order are rarely beneficial. Courts expect prompt action once a tenant becomes aware of a problem with the original proceedings.

Legal Costs and Advice

Applications to change court orders may incur court fees and can involve complex procedural rules. Early advice from housing advisers or solicitors can improve chances of success.

Key Takeaways

Challenging or seeking reconsideration of a possession order in England and Wales involves three principal routes:

• Setting Aside - Treats the original order as if it had not been made, typically where the tenant could not defend the claim.
• Varying - Adjusts the terms of the order in light of changed circumstances.
• Appealing - Reviews the legal correctness of the original order.

Each procedure has specific forms, evidential requirements, and time limits. Prompt action and clear evidence are essential for success, and professional advice can significantly strengthen an application.