the Property Law website

Maintained by Gary Webber, barrister

Accelerated possession


Accelerated possession
Mortgage claims
Standard Possession Claims
Trespassers


Introduction
The conditions
Claim form, service and defence
Subsequent procedure - reference to a judge
Postponement of the order for possession

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Accelerated possession


Introduction


CPR Part 55, Section II and section II of PD 55 provide for an accelerated possession procedure in certain assured shorthold tenancy cases.  Where various conditions are satisfied it is possible to use this procedure instead of the standard procedure in Part I.  The main features of the accelerated procedure are that:

  • Both the claim form and the defence are prescribed forms.

  • It only applies to assured shorthold cases.  It also used to apply in some other assured tenancy cases but this is no longer the position.

  • If the court is satisfied that the landlord is entitled to an order for possession no hearing takes place.

As with the other provisions of Part 55, the procedure comes into force on 15 October 2001.

 

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The conditions


The conditions that apply are set out in Rule 55.12.  All conditions have to be satisfied but the main conditions to note are that:

  • The only purpose of the claim can be to recover possession of the property and no other claim, such as a claim for rent, may be made.

  • The tenancy must:

    • Be the subject of a written agreement

    • Arise by virtue of s5 of the 1988 Act but follow a tenancy that was the subject of a written agreement; or

    • Relate to the same or substantially the same property let to the same tenant and on the same terms (though not necessarily as to rent or duration) as a tenancy that was the subject of a written agreement.

It is important to note that this last set of requirements means that the accelerated procedure will not apply to new shortholds entered into orally on or after 28 February 1997.

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Claim form, service and defence


The claim must be started in the county court for the district in which the property is situated (55.11).  (If it is started in the wrong court see CPR 30.2(3)).  The claim form must be in the form set out in the relevant practice direction (Form N5B) and must contain the information and be accompanied by the documents required by the form. All relevant sections must be completed. (55.13). (Note that paragraph 5 of the form adds a requirement in relation to a "replacement tenancy" that the landlord and tenant were the same people at the start of the replacement tenancy as they were at the end of the previous tenancy). The form can be found on the Court Service website.

The court serves the form by first class post (55.13(3)).

A defendant who wishes to oppose the claim must file a defence within 14 days after service.  This must also be in the form prescribed by practice direction (Form N11B).  If the defendant wishes to oppose the order for possession it is very important that the form is completed otherwise the court will undoubtedly make the order.

If the tenant accepts that an order for possession will be made but wishes to obtain more than the usual 14-day order he must also use the prescribed form.  He should set out such matters that may assist in Box 9 of the Defence form.  The court may only give an extension of time of up to six weeks and even then only in exceptional circumstances so it is important to set out full details of the matters relied upon (see further below).

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Subsequent procedure - reference to a judge


The procedure after the claim has been issued and served on the defendant is set out in rules 15 and 16 of CPR 55.  Essentially, the position is as follows:

  • If the defendant does not serve his defence within 14 days of service the claimant will be able to file a request for an order for possession and the court will refer the request to a judge (15(2).

  • If the defendant serves a defence within the 14-day period the defence will be sent to the claimant and the claim and defence will be referred to a judge (15(1)).

  • Where a defence is filed outside the 14-day period but before the claimant files a request the defence will be sent to the claimant and the claim and defence will be referred to a judge (15(3)).

  • Where a defence is not served but the claimant does not file a request for an order for possession within 3 months after expiry of the 14-day period for service of the defence the claim will be stayed (15(4)).

  If the claim is referred to a judge he or she will decide whether:

  • To make an order for possession without requiring attendance of the parties; or

  • Where he is not satisfied that the claim form was served or that the claimant is not entitled to possession under s21 of the 1988 Act direct a date to be fixed for a hearing and give appropriate case management directions; or

  •  If the claim form discloses no reasonable grounds for bringing the claim, strike out the claim.

If the judge is satisfied that the claim form was served on the defendant and that the requirements of s21 have been satisfied he will be required to make the order for possession, normally to take effect within not more 14 days, even if the defendant has asked for a longer postponement on the grounds of exceptional hardship (PD 55, para 8.1).

As a working rule, where the Defence form, on its face, raises a case that, if true, would constitute an arguable defence to the claim, the judge must fix a date for the hearing (Manel v Memon [2000] 33 EG 74).  If the judge does fix a hearing date the parties will be given not less than 14 days notice of it.  Where the claim is struck out the court will give reasons when serving the order and the claimant will then have 28 says to apply to restore the claim after the order was served upon him. 

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Postponement of the order for possession


The usual order for possession is 14 days.  The maximum amount of time that can be given is six weeks and even then more than 14 days can only be given in exceptional circumstances (s89 of the Housing Act 1980).  Part 55 contains specific provisions relating to the procedure for postponing the date upon which possession is to be given up (PD 55, paras 8.1 to 8.4).

Where the defendant seeks postponement on the ground of exceptional hardship and the judge on the basis of the defence form, is satisfied that the defendant has shown exceptional hardship he will be able to postpone possession without a hearing but only if:

  • He considers that possession should be given up 6 weeks after the date of the order or, if the defendant has requested postponement to an earlier date, on that date; and

  • The claimant indicated on his claim form that he would be content for the court to make such an order without a hearing (paragraph 8 of the form claimants should note that the paragraph is already printed on the form and will need to be deleted if not acceptable).

In any other case, if the defendant seeks a postponement for longer than 14 days, the judge will direct a hearing of that issue (PD 55, para 8.3).  If at the hearing the judge is satisfied that an extended order should be granted on the grounds of exceptional hardship he will be able to vary the order to provide for possession to be given up at a later date.  However, that later date may be no later than 6 weeks after the making of the order for possession on the papers (PD 55, para 8.4).  

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