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

Has a court made a possession order against you that you believe was wrong, or made at a hearing you had good reason to miss? You may be able to apply to have the order set aside. Here is what that means and how to do it.

What does "set aside" mean?

Setting aside means asking the court to cancel the order as if it had never been made. Succeed, and the order falls away; the landlord must start again.

When can you apply to set aside a possession order?

You can apply in these situations:

You did not receive notice of the hearing

If the papers never properly reached you and you did not know about the hearing, you may have grounds. You must show you had no notice of the date, and that you hold a real defence to the claim.

You had a good reason for not attending

If you got the papers but could not attend, through illness, a true emergency or another strong reason, you can apply to set the order aside and ask for a fresh hearing to put your case.

The order was made on wrong information

If the landlord fed the court wrong information and the order rests on it, say claimed arrears you can prove you did not owe, you may be able to apply.

The notice was defective

If the notice behind the claim was invalid, say a pre-abolition Section 21 notice that broke the rules, and nobody raised it at the original hearing, you may be able to apply and argue the point properly.

What is the time limit?

Apply as soon as you can, and certainly before any enforcement date: the date you must leave by. If enforcement officers are already moving, you must also urgently ask the court to stay (pause) the enforcement.

How do you apply?

You apply on a court form, usually Form N244, the Application Notice. On it you:

• Explain why you are applying
• Set out your grounds
• Say whether you also want an interim stay, a pause in enforcement

A court fee normally applies. On a low income you may get fee remission.

Do you need a solicitor?

You do not need a solicitor, but get advice as fast as you can. Law centres and housing advice services help with urgent applications, and Shelter's online advice can too.

If you cannot get advice ahead of time, the court's duty adviser scheme may help on the day of the hearing.

What will the court consider?

Deciding whether to set aside, the court generally asks:

• Did you have a good reason for missing, or not knowing about, the original hearing?
• Do you have a real prospect of defending the claim at a new one?

You need both. No reason for missing the hearing, and no defence, means the court is unlikely to set the order aside.

What happens if the application is granted?

If the court sets the order aside, the claim is listed for a new hearing and you put your case in full. The original order stops having any effect.

Any stay on enforcement runs until the new hearing is resolved.

When should I contact Support for Tenants?

Facing eviction from a home that also has disrepair? We may be able to help with the disrepair side.

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