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Defending Possession Proceedings

To obtain a possession order and be able to evict a tenant from their home, landlords must adhere to the correct legal procedures. In most cases they’ll be required to serve a notice and obtain a possession order from the court before you can legally be evicted. Our specialist housing solicitors will explain how the law applies to your specific situation and will passionately defend your rights.

Landlords are also legally obliged to allow their tenants ‘quiet enjoyment’ of their property, and permit utilities like gas and electricity to be supplied to it. They cannot evict you without going through the correct legal procedures, enter the property without your permission, damage your property or harass you. 

If you have received a notice seeking possession, a claim form and/or a notice of hearing, do get in touch with us as soon as possible. Our expert solicitors are well known for representing tenants who find themselves facing claims for possession of their homes. We understand how difficult and stressful this situation can be and will fight to protect your rights and obtain the best outcome possible for you.

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    What is the possession procedure?

    Notice

    If your Landlord decides to start possession proceedings against you, they will first have to serve you with a notice. The notice can be served for a variety of reasons including:

    • Rent arrears
    • Anti-social behaviour
    • Sub-letting
    • You aren’t living at the property
    • Other breaches of your tenancy

    The length of notice will depend on what allegations are being made against you

    For tenants with Assured Shorthold Tenancies, the most common notice is a section 21 notice. This requires the landlord to provide at least two months’ notice before proceedings are issued. However, the notice does not require the landlord to provide a reason.

    Possession Hearing

    After a claim is issued at court you will receive court papers, which will include:

    • The Claim form
    • Particulars of claim
    • A time and date for a hearing
    • A defence form

    You’ll have 14 days in which to put in your Defence and any Counterclaim you wish to make. If you file an acknowledgement of service, you’ll have an additional 14 days, 28 days total. Although, this isn’t the case for section 21 claims.

    With section 21 claims, unless a tenant files a Defence, a Judge will usually be able to deal with the claim without a hearing. Therefore, it’s important that you file a defence so that a hearing is listed, and you can put across your case.

    Once a possession order has been made and the time to leave the property has passed, your landlord can apply for a warrant of eviction.

    You will receive a copy of the warrant once it has been issued by the court. It will list a time and date for your eviction. On the eviction date a court bailiff will attend the property. You will usually be given a short time in which to collect your belongings before vacating.

    You can seek to suspend the warrant by making an application to court. In rent arrears cases, this is usually to propose a payment plan.

    Eviction

    Once a possession order has been made and the time to leave the property has passed, your landlord can apply for a warrant of eviction.

    You’ll receive a copy of the warrant once it’s been issued by the court. It’ll list a time and date for your eviction. On the eviction date a court bailiff will attend the property. You’ll usually be given a short time in which to collect your belongings before vacating.

    You can seek to suspend the warrant by making an application to court. In rent arrears cases, this is usually to propose a payment plan.

     

    How does mortgage re-possession work?

    If your landlord or mortgage provider is taking action against you to re-possess the property you live in, you will want to understand the legal process involved and ensure it is carried out within the law.

    Hodge Jones & Allen, is well known for representing homeowners who find themselves facing possession claims, so we understand how to protect your rights and fight your corner. Whatever your circumstances, we will do everything we can to protect the roof over your head.

    "My experience with HJA was very professional at all times. They were helpful and very honest."

    What you need to know about re-possession

    Your mortgage lender must follow rules about how they deal with you. Before taking any court action your lender must follow pre-action protocol rules. Therefore, your lender should only take court action as a last resort. You should note however, that the pre-action protocol does not cover buy-to-let mortgages so if you have tenants living at the property, they might have the right to stay even if your home is repossessed.

    In most cases, your lender will try and seek possession because you are in arrears. If you’re in mortgage arrears then you should negotiate with your lender and consider how to move forward without the need for court action. 

    Your lender must treat you fairly and they must consider any reasonable suggestion you make to pay off your arrears. Your lender should discuss your financial situation and give you a reasonable chance to pay off your arrears and keep your home. They must also send you one a leaflets offering advice on steps you can take to keep your home from any of the following:

    Your lender can delay court action for several reasons. For example, if you’re likely to apply for support for mortgage interest or you make a claim under the mortgage payment protection policy. Other reasons also include a reasonable payment plan or if you decide to sell the property.

    There have been many occasions where we’ve assisted clients to negotiate a reasonable payment plan and stop them from being evicted from their home.

    Receiving a court order

    If all options are exhausted, your lender will apply to the court to repossess your property. You’ll receive a court order with the date of the hearing and your lender’s reasons for seeking possession. You should seek legal advice at this stage to consider whether you can defend your case, and if so, how.

    Why choose Hodge Jones & Allen Solicitors?

    Our experienced housing lawyers can help protect you from unlawful eviction and, if your landlord has broken the law, we can assist you with a claim for compensation.

    We’re recognised as one of the highest ranking law firms for social housing and tenant law in the UK. In fact, we’re one of only four firms in the UK to be listed as a Tier 1 firm for this area of law in the Legal 500 guide. We’re also recommended as a leading team in housing law by Chambers UK.

    You’ll find our solicitors are passionately committed to defending the rights of those in need of housing. We’ll fight rigorously to get the best possible result we can achieve.

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    Meet The Team
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    Jayesh Kunwardia
    Partner
    Daniel Fitzpatrick
    Partner
    Farzana Chowdhury
    Partner
    Sophie Bell
    Partner

    Featured cases

    Housing Help

    A council issued eviction proceedings against our client following complaints about noise from their family and pet dogs. The council also applied for an injunction to prevent our client from engaging in anti-social behaviour and from keeping animals in her home. Following representations from our housing solicitors, the council allowed our client to remain in her home and keep one of her dogs. The injunction was dropped which removed the threat of a fine or prison sentence. The judge praised our handling of the case and spared our client the distress of giving evidence in court.

    type of claim
    Eviction & Injunction
    result
    eviction & injunction dropped
    Housing Help

    An elderly and vulnerable client was facing eviction due to allegations of serious anti-social behaviour. Possession proceedings were commenced by the local authority and would have resulted in the tenant’s eviction. The tenant was suffering from mental illness and lacked capacity. We were able to stay the proceedings and negotiate with the local authority to assess the client’s care needs resulting in them agreeing to rehouse the tenant in more suitable accommodation that was appropriate to his needs, thereby preventing his homelessness.

    type of claim
    Eviction
    result
    more suitable accommodation
    Housing Help

    We acted for a client after his social landlord, Genesis, sought to evict him. However, the background to the claim strongly suggested the real reason for the claim was alleged anti-social behaviour by the client. The client sought advice from two other firms, but both advised he had no defence. After a date for eviction was set, we represented him in our capacity as duty solicitor. We satisfied the judge that our client had a seriously arguable defence on Article 8/Public Law grounds and a timetable was set for trial. In compliance with the directions, we obtained a psychiatric assessment of our client that confirmed he suffered with developmental dyslexia and was disabled for the purposes of the Equality Act 2010. We continued to comply with the court timetable. We also entered into negotiations regarding settlement with Genesis and we successfully settled the claim with a general adjournment. The client retained his home.

    type of claim
    Eviction
    result
    eviction dropped
    Housing Help

    Money was owed due to a change in circumstances and the knock-on effect on benefits. Over lockdown, the two Defendants' relationship broke down and they separated. This caused further issues with benefit due to the money owed being caused by further changes in circumstances. The first Defendant contracted Covid which led to their health deteriorating, and was subjected to bedroom tax deduction and only half the rent as tenancy was in joint names. We negotiated the settlement for proceedings to be put on hold for 6 months to allow further time to appeal the benefit award. Counterclaim was brought on the basis of disrepair and fitness for human habitation and the landlord agreed to pay compensation, which had the effect of cancelling out the money owed by £6,000.

    type of claim
    money owed due to knock-on effect of benefits
    result
    proceedings adjourned & £6,000 compensation
    View all

    Frequently asked questions

    What should I do if my landlord alleges anti-social behaviour?

    If your housing association or social landlord is taking legal action against you for alleged anti-social behaviour, we can help defend your case every step of the way, including representation in the County Court.

    How long do I have until I have to leave after a possession order?

    A possession order is usually made which requires the tenant to leave within 14 days. However, the time can be extended up to a maximum of 56 days if you’re able to show that you’d suffer exceptional hardship if you had to move out within 14 days.

    What if I'm unable to take all of my belongings when I'm evicted?

    You should contact your landlord to agree a time and date to pick up any remaining items.

    Further Reading
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