Applying to set aside a possession order: what tenants need to know

If a court has made a possession order against you and you believe it was made wrongly, or that you had a good reason for not attending the hearing, you may be able to apply to have the order set aside. Below we explain what setting aside a possession order means and how to do it.

What does "set aside" mean?

Setting aside a possession order means asking the court to cancel the order as if it had not been made. If successful, the possession order no longer stands and the landlord would have to start the process again.

When can you apply to set aside a possession order?

You can apply to set aside a possession order in the following circumstances:

You did not receive notice of the hearing

If the court papers were not properly served on you and you did not know about the hearing, you may have grounds to set aside the order. You will need to show that you had no notice of the hearing date and that you have a real defence to the claim.

You had a good reason for not attending

If you received the court papers but could not attend the hearing because of illness, a genuine emergency, or some other compelling reason, you can apply to set aside the order and ask for a new hearing where you can put your case.

The order was made on wrong information

If the landlord gave the court incorrect information and the order was made on the basis of that information, for example, they claimed rent arrears that you can show you did not owe, you may be able to apply to set aside the order.

The notice was defective

If the notice the landlord served before bringing the claim was invalid, for example, a Section 21 notice that did not comply with legal requirements, and this was not raised at the original hearing, you may be able to apply to set aside the order and argue the point properly.

What is the time limit?

You should apply to set aside the order as soon as possible, and certainly before any enforcement date (the date by which you must leave). If enforcement officers are already acting, you will need to apply urgently to the court to stay (pause) the enforcement as well.

How do you apply?

You apply using a court form, usually Form N244 (Application Notice). On the form, you will need to:

• Explain why you are applying to set aside
• Set out the grounds (your reasons)
• State whether you are seeking an interim stay (a pause in enforcement)

You will normally need to pay a court fee when making the application. Reduced fees may be available if you are on a low income (fee remission).

Do you need a solicitor?

You do not have to have a solicitor, but it is strongly advisable to get advice as quickly as possible. Many law centres and housing advice services can help with urgent applications. Shelter's online advice may also help.

The Duty Adviser scheme at the court may be available on the day of your application hearing if you cannot get advice in advance.

What will the court consider?

When deciding whether to set aside the order, the court will generally ask:

• Did you have a good reason for not attending (or not knowing about) the original hearing?
• Do you have a real prospect of defending the claim if a new hearing is held?

You need to show both things. If you had no reason to miss the hearing and have no defence, the court is unlikely to set aside the order.

What happens if the application is granted?

If the court sets aside the possession order, the landlord's claim is relisted for a new hearing. You will have the chance to put your case in full. The original order no longer has any effect.

If enforcement was in progress, the stay will continue until the new hearing has been resolved.

When should I contact Support for Tenants?

If you have an eviction and there is also disrepair in your home, we may be able to help with the disrepair side of things.

Call us on 0800 030 4669. No upfront cost. You only pay if you win, and the fee comes out of the compensation, not your pocket. If you don't win, you pay nothing.

Sources

• Civil Procedure Rules, Part 39 (hearings, setting aside) (justice.gov.uk)
• Civil Procedure Rules, Part 55 (possession claims) (justice.gov.uk)

Related articles

• Suspended possession order, explained
• Retaliatory eviction, explained