Applying to Stop Evictions

Once a possession order becomes enforceable, either due to the passage of time or the defendant’s failure to comply with any conditions contained in it, the claimant is likely to apply for a warrant of eviction. There will not be another court hearing before this can happen – the claimant simply applies to the court bailiff who sets a date for the eviction.

Applying to Stop Evictions

Unless an agreement can be reached with the claimant an application will have to be made at court to “suspend the warrant”. A £35 fee is payable, but some people on low incomes are exempt from this. The defendant fills in a form, available from the court, stating what they are asking the court to do and explaining why the eviction should be cancelled or postponed. Once the application has been lodged at court a date will be fixed for a hearing.

Mortgage Possessions

The judge considering the application will have the same powers as the judge who granted the original possession order. Broadly these applications tend to fall into two categories:

• Applications for more time to sell or re-mortgage the property;
• Applications made on the basis that the borrower is now in a position to maintain regular payments to the mortgage.

When an application is made for more time to sell or re-mortgage the court is likely to look for firm evidence that a sale or re-mortgage is imminent. A borrower might produce letters from solicitors or the new mortgage company although many judges will accept the borrower’s oral evidence. If a borrower can make a lump sum payment this may sway a judge who is uncertain that the sale or re-mortgage will complete as expected.

When a borrower offers regular payments to the mortgage they should provide evidence of an ability to make the payments. If there is a history of default on the mortgage the court will need to be satisfied that payments will be maintained going forward.

Repeat Applications

Defendants often succeed in stopping evictions on numerous occasions. However, if a borrower keeps defaulting on court orders judges are likely to become increasingly reluctant to allow their applications. Borrowers who have previously been successful in these applications must not get lulled into a false sense of security and assume that the court will always stop the eviction.

Rent Possessions – Mandatory Possession Orders

When a mandatory possession order in respect of rent arrears has been made the judge’s power to postpone an eviction is extremely limited. Mandatory possession orders are usually made after tenants have been given two weeks’ notice to leave a property because they owe at least two months’ rent or two months to leave the property in a section 21 notice.

If a judge is satisfied that a tenant will suffer “exceptional hardship” he can allow the tenant up to six weeks before he has to leave the property. This is the only help a judge can give a tenant in these cases. However, the six week period runs from the day on which the possession order was made. For example, if a tenant applies to stop an eviction scheduled to take place four weeks from the date of the possession order, the maximum amount of time the judge can allow is a further two weeks.

Rent Possessions – Discretionary Possession Orders

A judge hearing an application based on a discretionary possession order has quite wide powers to stop the eviction. If the judge decides that the tenant is in a position to resume payment of the rent and make a contribution towards any arrears he may allow the tenant to stay in the property. However, the judge has to balance the interests of both the landlord and the tenant. For example, a judge may be more willing to stop an eviction if the landlord is a public authority or a property company than if the landlord is a private individual struggling with mortgage payments.

Last-Minute Applications

It is not unusual for these applications to be made at the eleventh hour - the hearing may even take place on the day set for the eviction. In some cases the application will be made so late that the eviction has to be postponed pending a hearing. However, defendants should not assume that they will automatically be given more time just because the application is made at the last minute. The court bailiff will almost certainly await the outcome of the application but, if an eviction is scheduled to take place at 10.30 and a hearing is listed for 10.00, the eviction may well still go ahead if the application is unsuccessful. A defendant’s failure to have packed is not a legal basis to stop an eviction.