Cancelling, changing and delaying possession orders
This section looks at the ways in which the courts can alter a possession order. You might be able to apply to the court to have the possession order cancelled, change the terms of the order, or delay possession.
Can I cancel the possession order?
You will probably only be able to do this if the possession order should not have been granted in the first place. This might be because:
- you did not receive the court papers
- you did not know that you had rights to defend your case
- you did not attend the hearing
- you did not reply to the court in time, and you had a good reason for this
- if you had been able to reply in time, the court would have made a different order or no order at all, or
- in all the circumstances, the court thinks that it is fair and just for the order to be cancelled.
Cancellation of the possession order is known as ‘setting aside’. If an order is set aside then the court may order a re-hearing of the case. Alternatively, it may deal with the matter there and then and make any of the usual orders for possession.
Applications to set aside an order need to be done at the courts. If you need help, get in touch with an adviser immediately. An adviser can help you complete the court papers and prepare a witness statement to provide supporting evidence as to why the order should be changed.
What if I did not attend the hearing?
The most common reason for an application to set aside is that the tenant did not attend court when the possession order was made.
The court will look at three factors when deciding whether to set aside a possession order. These are:
- whether the tenant acted quickly after finding out about the possession order
- whether they had a good reason for not attending the court (eg being ill)
- whether they would have had a reasonable prospect of success if they had attended the court.
The court may still decide that it is fair and just to set aside a possession order even if these factors are not satisfied, and there are no clear rules to define ‘acting quickly’ or what is a ‘good reason’ for not attending the court. Get in touch with a Shelter Cymru adviser to help you – see advice near you to find one local to you.
Some tenants will not be able to apply to have a possession order set aside because they did not attend the hearing. These include:
- unprotected tenants or licensees, cases where possession was granted on mandatory grounds, which was confirmed by the facts (situations where the court has no choice but to make a possession order – get advice if you are not sure whether this applies to you).
- cases where possession order was requested under section 21 Housing Act 1988 against an assured shorthold tenant.
Can I stay in my tenancy?
If the court sets aside the possession order, it’s as if the order had never been made. The court will tell you whether you need to attend another hearing and the procedure involved. If you haven’t done so already, get in touch with an adviser.
If a date has been set for a bailiff to carry out an eviction, it is advisable to contact them to check that they are aware the order has been set aside, particularly where they are due to evict you very soon.
Can I delay the date for eviction?
If the possession order can’t be set aside, the court may be able to delay the date for eviction. The court can only do this if you have a certain type of tenancy. Get in touch with an adviser for further information.
If you would suffer exceptional hardship if you had to leave the property within 14 days, the court can delay the date for eviction for up to six weeks. Exceptional hardship could occur where there are elderly people or young people in the household, or where a member of the family has a disability or health problems. The court can use this power in all cases requiring a possession order.
All applications to delay the date for eviction need to be made to the court with supporting evidence. Get help from an adviser to make sure you have provided all the evidence needed. You will probably have to pay a fee when you apply to delay the date of eviction.
Can I change the terms of my suspended order?
Possession orders are often suspended (or postponed), provided you keep to the terms of an agreement, such as repaying rent arrears in weekly amounts. You can ask the court to change or vary the terms of the agreement in certain circumstances, for example if your finances have changed, making it difficult to repay the agreed amount.
The court will not automatically agree to change the terms of the order, and is unlikely to agree if you have a bad record of rent repayments. Speak to an adviser to get help with applying to change the terms of the agreement.
We are sorry that we cannot provide this information in Welsh, however if you would like to speak to an adviser in Welsh please contact 0345 075 5005.