This guide is intended as a general overview of the main process of obtaining a possession order, but you should always get advice tailored to your specific circumstances. There are particularly specific rules about using Section 21 Notices that you should seek advice on.

Standard Procedure

Under this procedure, the landlord uses the N5 Claim Form for Possession. The standard procedure is used when the landlord is claiming possession based on rent arrears or when the landlord cannot use the Accelerated Procedure, set out below.

The Claim Form should set out the details of the claim in a document called Particulars of Claim. In a claim for possession based on arrears or rent, then the Particulars include following information:

• The amount of arrears due at the start of the claim and a full breakdown or schedule, with dates, of when the arrears started.
• A calculation of the daily rate of rent and interest.
• Details of what steps have been taken to recover the arrears from the tenant.
• Information about the defendant’s circumstances, for example whether the tenant receives benefits.
• If the possession is based on the tenant’s conduct, give details of the conduct alleged.

Once the Claim Form and Particulars have been sent to the court, the court will issue, or start, the claim and a copy of these documents are sent to the tenant. At the same time, the court will fix a date and time for the first hearing and notify all parties. How soon the first hearing will be depends a lot on how busy the local courts are but is usually 6-8 weeks.

The tenant, who is the Defendant, then has an opportunity to respond to the claim by filing a Defence with the court. The Defendant usually has 14 days to do so. The purpose of the Defence is for the tenant o respond to the various allegations made against them and to explain why a possession Order should not be made.

Unlike in other kinds of claims, in a possession claim, if a defendant does not file a defence, this does not mean the landlord automatically “wins”. The court can, however, take that failure into account when deciding what to do.

No later than 2 clear days before the hearing, the landlord should file his/her evidence to support the claims they made in the Claim Form and particulars. They should do this by filing a Witness Statement, verified with a Statement of Truth. This Witness Statement should explain why the landlord is entitled to possession, exhibit a copy of the tenancy agreement and give clear details of all payments made or not made by the tenant and any other relevant matters.

At the hearing, the court can either treat it as a final hearing and make a decision on the day itself or the court can treat the hearing as a “directions hearing” where the court will give further directions (or a timetable of next steps) for the case to be decided at another, final, hearing at later date. Which way the court decides depends on whether the court feels there is enough evidence before it to make a final decision either way.

If the tenant does not turn up, the court can still make a possession order against them.

If the court decides that the claimant is entitled to possession, it will make an order for possession. A tenant will always been given a reasonable time to leave the premises and the parties can ask the court to decide what that date it. Where the possession order is based on a section 21 notice, the usual period is 14 days but can be extended up to 6 weeks in cases of exceptional circumstances.

Accelerated procedure

A landlord can use what is called the “accelerated possession procedure” if the landlord is terminating an assured shorthold tenancy by using a section 21 Notice. Some of the requirements a landlord must meet to use this procedure are:

• The tenancy must have started on or after 15 January 1989.
• The claim must be for possession only and so cannot include a claim for payment of arrears.
• The tenancy must be a written tenancy
• A valid notice under section 21(1) or section 21(4) of the Housing Act has been served on the tenant.

The landlord starts the claim using a N5B Claim Form. Evidence that the landlord has protected the deposit with a Tenancy Deposit Scheme must also be attached to the claim form. A landlord cannot serve a section 21 notice and utilise the accelerated procedure, if it has failed in its statutory duty to protect the deposit. The Claim form also requires a copy of the tenancy agreement and section 21 notice to be attached.

Once the claim form has been sent to court to be issued and the tenant receives a copy, the tenant has 14 days to file a Defence. If no Defence is filed, the Landlord can ask for the Possession Order to be made by simply completing the correct form and sending this to the court.

Unlike in the standard procedure, there is not normally a first hearing in the Accelerated procedure. Instead the paperwork is passed up to a judge to consider.

The judge will consider the claim and do one of the following things:

1. Make an order for possession without a hearing; or
2. Fix a hearing date if the judge is not satisfied that the claimant is entitled to possession under section 21; or
3. Strike out the claim if it is obvious to the judge that the landlord is not entitled to possession.

Key reforms to the court process in 1999 began a period of change where the objective is now to deal with cases justly and proportionately to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.

Diving headfirst into court proceedings is discouraged. If you have a case to bring, you are expected first to send the other party a “letter before action”, setting out your claim and the remedy you seek. The onus is then on all parties to voluntarily exchange information and documents about the matter, and explore the issues with a view to settling out of court. Parties are encouraged to try to settle using alternative dispute resolution (ADR). It is more efficient and cost effective, and people are more likely to be satisfied with and abide by an agreement they have reached themselves. A decision imposed on them by the court may leave a bitter taste. Also, court hearings are usually held in public and may be the subject of media reporting, putting reputations at risk. Out of court settlements are more likely to be confidential.

ADR includes negotiation (by the parties with the help of their legal advisors); mediation (with a mediator who helps the parties agree terms); and arbitration (an arbitrator hears the arguments and decides on settlement terms). If you do end up in court, the onus on trying to settle continues and you can do so at any stage of the proceedings.

Parties must be open about the evidence they have or know of. No more holding your cards to your chest and springing surprises at the door of the court. You have to disclose all documents which are, or may be, relevant to the issues. These include documents in support of, or harmful to, your own case or the other party’s case. There are also rules on relying on experts (e.g. property valuers or medical experts). You may no longer choose to pay experts to argue on your behalf. You need the court’s permission. In the first instance, a single joint expert is appointed as a neutral witness, whose duty is to the court (not to you or the other party) to report impartially.

Court language and procedure are simpler, for the benefit of non-lawyers. You no longer “issue a writ”, you start a claim using a “claim form”. Evidence is given in a “statement” rather than an “affidavit”. And the requirement for statements to be sworn before a Commissioner for Oaths is mostly waived in favour of signing a declaration that your evidence is true.

Court proceedings remain expensive but costs are more closely monitored. At nearly every hearing, each party will disclose their costs to date and/or going forward. The judge keeps a close eye on whether costs risk becoming disproportionately high. If they do, you will be urged to settle. Even if you win, and the other party is ordered to pay your costs, it is unlikely they will have to fund the full amount of the “winner’s” costs. Each party almost always pays something in costs, hence an all-round advantage to reaching an early settlement.

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