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Applying to Set Aside or Vary a Possession Order

By: Louise Smith, barrister - Updated: 29 Jan 2017 | comments*Discuss
 
Possession Order application borrower

This type of application is most likely to be made by a borrower who did not know about the court proceedings and / or the hearing at which the possession order was made.

When a court issues a claim for possession they will send the borrower a notice giving the date and location of the hearing. The lender is legally obliged to send a letter to the property giving the time, date and location of the hearing. However, this letter must be addressed to “The Occupier” and is frequently ignored by borrowers.

If all the necessary documents have been sent to the correct address they are deemed to have been delivered and the lender is entitled to ask for a possession order. This is true even if it can be proved that the documents were not received by the borrower.

To have a possession order set aside, borrowers will have to prove that:

  • they had a good reason for not attending the hearing; AND
  • the possession order would not have been made if they had been present.

If a borrower did not receive notice of the hearing this may provide a good reason for his failure to attend. However, the borrower will still have to convince the court that the possession order would not have been made if he had been present. When a mortgage is in arrears and the lender’s case has been correctly presented it is highly unlikely that a court will agree that the possession order should not have been made.

To succeed in his application the borrower would probably have to prove that:

  • the lender had acted incorrectly;
  • there was a problem with the way the lender had presented their case;
  • the arrears had been cleared or significantly reduced when the possession order was made; or,
  • there was a valid defence to the claim, (rare in mortgage cases).

Strictly speaking, the judge should look at the circumstances as they were at the time the possession order was made. For example, if a borrower has cleared the arrears since the possession hearing the possession order should not be set aside because the lender was entitled to it when it was made.

Applying to Vary a Possession Order after Failure to Attend a Hearing

A borrower may argue that a suspended possession order would have been made if they had been at the hearing. A judge will consider the borrower’s financial circumstances and decide whether to substitute a suspended possession order. If the borrower can satisfy the judge that he is able to make payments it is highly likely that a suspended possession will be entered. The borrower may also be asked to explain why he did not attend the hearing.

Applying to Vary a Possession Order after a Change in Circumstances

If a borrower can no longer afford the payments he originally promised to make he can ask the court to reduce the payments required for the possession order to remain suspended.

A note of caution – the lender’s representative may argue that it is evidence that the borrower cannot afford the mortgage at all if:

  • The borrower has failed to make regular payments of the monthly instalment plus the amount he now says he can afford; or,
  • The original possession order provided for very low payments towards the arrears.
If a borrower’s financial circumstances have improved since the possession hearing, and he can now afford to make payments, an application can be made for a suspended possession order to replace the outright order originally granted.

Conclusion

There are steps that can be taken to set aside or vary possession orders but they are not guaranteed to be successful. Most judges will take the view that the lender is entitled to a possession order if there are arrears on the account and the lender’s case is correctly presented. It is up to the borrower to convince the court that an order should not have been made or that a suspended possession order is more appropriate.

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KitKat - Your Question:
I moved into my rented home (B'ham council) with my two daughters in 2003. I received IS/HB/CTB and in 2006, I dutifully called the DWP and declared an inheritance cheque, following the deaths of my parents in 2004/5. I was simply told that, because the amount was over £16k, IS would stop and I would have to pay rent/CT, which I did throughout 2007. However, my local NO advised that children's capital was ignored for HB/CT claims (Circular A32/2004) and the BO confirmed, in writing, that I could declare "any amount" for my children on the (unrevised) forms. The wills stated that "beneficiaries" would receive a share after reaching the age of 25, which I believed meant grandchildren (my two sisters and myself were the named executors and were already over the age of 25), so I claimed HB/CTB, excluding my children's capital, which my elder children agreed to me keeping in my name to prevent them from wasting it. I spent 2006-2009 battling for justice, via the PR/LCS/SRA, in relation to my sisters' proven ineptitude as executors (the PR having advised me to get them removed, but losing "because they were equally named", and having to pay £13k to the solicitor my sisters appointed to "look after the estate"!) I was due to begin a degree in law/human rights in 2010, but my elder daughter became ill with stress-related eczema, whilst studying for her nursing degree, so I cared for her f/t until 2011. During 2012, I felt very low and in 2013, I worked in a care home, which helped, but I witnessed abuse against the residents and, when I shared concerns, I was "dismissed"! The grievance procedure/tribunal took a year (I lost because I was "out of time", regardless of the case being in the interest of justice) and, in April 2014, my doctor referred me for counselling for stress-related nausea (no appointment made, to date.) THEN, in May 2014, the BS asked me to attend an "interview under caution." I was treated like a criminal and accused of not declaring my capital, even when I repeated the advice they had given me in 2007. I appealed their decision and it took 2+ years for the hearing. My evidence was rejected and I lost the case. In the meantime, rent accrued (£5k since the IUC) and I attended court, but became so upset by how I was treated, and did not attend last week's hearing due to sickness/upset stomach. I emailed the court before the case was due to be heard, and my doctor agreed to provide a sick note and a letter to support my pending request for a waiver of the £25k "overpayment." I have now received a letter from the council, listing eg claiming possession forthwith, and I am very concerned, especially for my youngest daughter (17) who is not in education or employed, due to personal difficulties. What can I do? PLEASE advise me.

Our Response:
It's a shame you have not managed to get the appropriate legal advice you've needed during these past few years. Please do go to your nearest Citizens' Advice Bureau, they should be able to put you in touch with affordable legal advice from someone who is trained in benefits/housing law etc.
HousingRepossessions - 30-Jan-17 @ 10:41 AM
I moved into my rented home (B'ham council) with my two daughters in 2003. I received IS/HB/CTB and in 2006, I dutifully called the DWP and declared an inheritance cheque, following the deaths of my parents in 2004/5. I was simply told that, because the amount was over £16k, IS would stop and I would have to pay rent/CT, which I did throughout 2007. However, my local NO advised that children's capital was ignored for HB/CT claims (Circular A32/2004) and the BO confirmed, in writing, that I could declare "any amount" for my children on the (unrevised) forms. The wills stated that "beneficiaries" would receive a share after reaching the age of 25, which I believed meant grandchildren (my two sisters and myself were the named executors and were already over the age of 25), so I claimed HB/CTB, excluding my children's capital, which my elder children agreed to me keeping in my name to prevent them from wasting it. I spent 2006-2009 battling for justice, via the PR/LCS/SRA, in relation to my sisters' proven ineptitude as executors (the PR having advised me to get them removed, but losing "because they were equally named", and having to pay £13k to the solicitor my sisters appointed to "look after the estate"!) I was due to begin a degree in law/human rights in 2010, but my elder daughter became ill with stress-related eczema, whilst studying for her nursing degree, so I cared for her f/t until 2011. During 2012, I felt very low and in 2013, I worked in a care home, which helped, but I witnessed abuse against the residents and, when I shared concerns, I was "dismissed"! The grievance procedure/tribunal took a year (I lost because I was "out of time", regardless of the case being in the interest of justice) and, in April 2014, my doctor referred me for counselling for stress-related nausea (no appointment made, to date.) THEN, in May 2014, the BS asked me to attend an "interview under caution." I was treated like a criminal and accused of not declaring my capital, even when I repeated the advice they had given me in 2007. I appealed their decision and it took 2+ years for the hearing. My evidence was rejected and I lost the case. In the meantime, rent accrued (£5k since the IUC) and I attended court, but became so upset by how I was treated, and did not attend last week's hearing due to sickness/upset stomach. I emailed the court before the case was due to be heard, and my doctor agreed to provide a sick note and a letter to support my pending request for a waiver of the £25k "overpayment." I have now received a letter from the council, listing eg claiming possession forthwith, and I am very concerned, especially for my youngest daughter (17) who is not in education or employed, due to personal difficulties. What can I do? PLEASE advise me...
KitKat - 29-Jan-17 @ 2:23 AM
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