An absolute order will be made where the landlord proves grounds for possession or in the case of an Section 21(accelerated possession) order, the judge is satisfied that the Section 21 Notice is correct and the serving of the notice was done properly.
A free Section 21 Notice is availiable for users to download.
The tenant must then vacate the rental property on the date specified.
For example, for an assured shorthold tenancy, providing the landlord has served the necessary notices and it is 6 months after the original tenancy began, the court has no choice but to make an order for possession requiring the tenant to vacate 14 days after the date of the hearing.
The only discretion the court has, is to postpone the date by a maximum of 42 days if the tenant can prove exceptional hardship will be caused otherwise.
These orders are most often made in cases of rent arrears. If a landlord can only prove a discretionary round 10; that is, the tenant's rent is behind, but not the 2 months in arrears required for the mandatory ground 8. In this case the court may make an order for possession but suspend it if the tenant meets certain conditions. District judges are very sympathetic to tenants who experience problems due for example to failure of the local authority to pay housing benefit, or where the tenant has experienced some short term financial difficulties.
In the case of rent arrears the tenant may agree to pay the rent plus a specified amount each week to pay off the arrears, in which case the court are likely to suspend the order for possession. If the tenant then defaults on these conditions, the landlord can then apply to the court for the order to be made absolute or for a warrant of possession to be issued. There is no requirement for the court to grant this and they may decide instead to suspend the order for possession. This lack of clarity and potential extended time period is why a landlord should always seek possession on a mandatory rather than a discretionary ground where this is possible.
In circumstances where a landlord is relying upon discretion rather than mandatory grounds for possession, a court may decide that the tenants conduct has not caused a serious breach of the tenancy agreement and not to grant an order for possession. They may simply adjourn the proceedings either indefinitely or to a later date, subject to certain terms or conditions.
In cases of rent arrears this may be an alternative to a suspended possession.
However, if the tenant defaults on the agreement, the landlord will have to re-apply to the court for a possession order. The court may either make a suspended or absolute possession order depending on the seriousness of the case and the tenant’s circumstances.
If the landlord fails in his claim for possession (e.g. he has not served the correct notices, they are incorrectly completed, or he has failed to supply documentation in support of his claim) the landlords proceedings may be dismissed. The tenant may then apply for an order for costs against the landlord.
If the tenant has counter claimed against the landlord (e.g. failure to repair the property or harassment) and succeeds an order for damages may be awarded against the landlord. Landlords should note that as from 26 April 1999 the limit of claims for housing disrepair has been reduced to £1000.
Responsibility for the legal costs incurred in possession proceedings is always a mater for the court’s discretion. If a possession order is made against the tenant, the tenant may be ordered to pay some or all of the landlord’s legal costs in bringing the proceedings. If the landlord fails and the tenant has incurred legal costs there may be an order for costs against the landlord. The successful party at the hearing will normally make an application for costs as appropriate.
If you need additional information please post your questions to our free landlord legal forum.
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