What can the court do?
If your lender applies for a possession order, it doesn’t necessarily mean that the court will agree to evict you. It’s never too late to get advice – an adviser may be able to help you present your case in court.
After the judge has listened to you and to your lender or freeholder (the claimant) and looked at all the information, s/he will decide to:
- adjourn the case, or
- strike out (dismiss) the case, or
- make an outright possession order, or
- make a suspended possession order, or
- make a time order, or
- make a money judgment.
What does ‘adjourning the case’ mean?
At the first hearing, the judge may feel that the case can’t be decided on the day and that the court’s decision should be delayed. This is called adjourning the case. A case can be adjourned indefinitely or for a fixed period of time.
This might happen because:
- the judge needs more information or evidence from you or the claimant before making a decision
- you need more time to raise a lump sum to pay off the arrears
- you are selling your home and need more time to complete the sale.
If the case is adjourned you may be given a new hearing date. Alternatively, the claimant may have to apply for a new hearing after a fixed period of time or if there is a change of circumstances. If you have mortgage arrears, you may have to pay an amount off the arrears each month as a condition of the case being adjourned. In the meantime, you have the right to remain in your home and you cannot be evicted.
What does ‘striking out the case’ mean?
The judge may decide that your lender’s claim should be ‘struck out’ or dismissed because there is no reason why you should be evicted.
This might happen if:
- the claimant has not followed the correct procedure for bringing the case to court
- the claimant or their representative does not attend the hearing
- the arrears are cleared.
If the judge strikes out the case, you have the right to stay in your home. If the claimant wants to evict you, they will have to start the court process again from the beginning.
What is an ‘outright possession order’?
If there is no prospect of you being able to resolve the matter, or your circumstances are unlikely to improve, the court may decide to grant an outright possession order. An outright possession order means that you won’t have the right to live in your home after the date of possession given in the order. This is usually 28 days after the court hearing. If you think you need more time, tell the judge at the hearing. You may be given more time if you are in a difficult situation, for example, you are ill or you have young children.
Even if you have been given an outright possession order, you may still be able to negotiate with your lender to persuade them not to evict you. You can also ask the court to suspend an outright possession order.
If you don’t leave by the date in the court order, the claimant can apply to the court for a warrant for the bailiffs to evict you. You can’t be physically removed from the property by anyone other than the court bailiff. It is often only a matter of days before the bailiffs come. They can remove you and your family from the property, but they can’t use violence to do so.
If you have been given an eviction date, you can apply to the court to stop or delay the eviction if there is a strong reason to do so, for example, you didn’t receive the court papers. You can apply right up to the date of eviction, but it’s best to apply as soon as you hear from the bailiffs. Seek urgent legal advice if you receive a Notice of Eviction from the county court.
What is a ‘suspended possession order’?
In many cases, and depending on your particular circumstances, the court will decide to grant a suspended possession order. A suspended possession order may be granted if the judge thinks that the claimant is entitled to repossess your home, but it’s not reasonable to do so immediately because of your circumstances. You will be allowed to stay in your home provided you keep to certain conditions. Often it is a condition of a suspended possession order that you keep up with ongoing mortgage payments and also pay an agreed amount each month towards the arrears.
The conditions will be explained to you in the hearing and in the court order. If you don’t keep to the terms of the order, the claimant can apply to the court for the bailiffs to come and evict you. This could happen very quickly. You will receive a letter from the court bailiffs giving you an eviction date and time. You can apply to the court to stop or delay the eviction if there is a strong reason to do so, for example your circumstances have changed and you are now able to make the mortgage payments. You can apply right up to the date of eviction, but it’s best to apply as soon as you can once you hear from the bailiffs.
What is a ‘time order’?
If you have a secured loan or second mortgage, the court may be able to reduce your payments by either:
- changing the interest rate on your loan, or
- lengthening the term of the loan.
This is called a time order. You will need to tell the judge at the hearing that you want a time order. A time order can only be granted for certain types of loan, depending on when the loan was taken out and the amount you borrowed. If you are not sure whether you can get a time order, contact a local advice centre.
What is a ‘money judgment’?
The claimant can ask the court for a money judgment to be registered against you. This allows your lender to recover all of the money owed under the mortgage, not just the arrears. A money judgment may make it difficult for you to get credit in the future.
Can the order be changed?
In some circumstances, you can ask the court to cancel the order. This is only likely to be successful if the order should not have been made in the first place.
This might be because:
- you didn’t receive the court papers,
- you didn’t know you had a right to defend the case,
- you didn’t attend the court hearing,
- you didn’t reply to the court in time and you had a good reason for not replying. If you had replied, the court may have made a different order or made no order at all.
You can also ask the court to change the terms of a suspended possession order if your circumstances change. For example, if you can’t keep up the payments because you’ve lost your job. It will be easier to do this if you have kept to the conditions and the claimant agrees to the change.
To cancel, suspend or vary the terms of an order, you will need to apply to the court by filling in a specific form. You may also have to pay a fee, although if you are claiming benefits or you are on a low income, you may not have to pay. The court will set a hearing date when your application will be considered by the court. You must attend the hearing. An adviser can help you fill in the application form.
Will I have to pay court costs?
Probably. If a lender starts legal action because you are in arrears, the lender will normally simply add its legal costs to your mortgage debt. In some circumstances, the court can stop your lender from doing this. Get advice if you are concerned that this may happen.