See also Practice Direction
55, Practice Direction
55B
Part
55
POSSESSION CLAIMS
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Interpretation
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55.1 |
In this Part –
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| | (a)
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‘a possession claim’ means a claim
for the recovery of possession of land (including buildings or parts of
buildings);
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|
| | (b)
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‘a possession claim against
trespassers’ means a claim for the recovery of land which the claimant
alleges is occupied only by a person or persons who entered or remained on the
land without the consent of a person entitled to possession of that land but
does not include a claim against a tenant or sub-tenant whether his tenancy has
been terminated or not;
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| | (c)
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‘mortgage’ includes a legal or
equitable mortgage and a legal or equitable charge and ‘mortgagee’
is to be interpreted accordingly;
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|
| | (d)
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‘the 1985 Act’
means the Housing Act 19851;
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|
| | (e)
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‘the 1988 Act’ means the Housing Act
19882;
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|
| | (f)
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‘a demotion claim’
means a claim made by a landlord for an order under section 82A of the 1985 Act
or section 6A of the 1988 Act (‘a demotion order’);
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| | (g)
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‘a demoted tenancy’
means a tenancy created by virtue of a demotion order;
and
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|
| | (h)
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‘a suspension
claim’ means a claim made by a landlord for an order under section 121A
of the 1985 Act.
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New Rule 55.1(h) added w/e from 1 October 2005,
New cross-reference inserted after Rule 55.2(1) w/e from 30 June 2004. |
I
GENERAL RULES
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Scope
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55.2 |
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| | (1)
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The procedure set out in this Section of this Part
must be used where the claim includes –
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| | (a)
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a possession claim brought by a –
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| | (i)
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landlord (or former landlord);
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| | (iii)
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licensor (or former licensor);
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| | (b)
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a possession claim against trespassers;
or
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| | (c)
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a claim by a tenant seeking relief from
forfeiture.
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(Where
a demotion claim or a suspension claim (or both) is made in the same claim form in which a possession claim is started, this Section of this Part applies as
modified by rule 65.12. Where the claim is a demotion claim or a suspension
claim only, or a suspension claim made in addition to a demotion claim, Section
III of Part 65 applies).
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| | (2)
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This Section of this Part
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| | (a)
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is subject to any enactment or practice
direction which sets out special provisions with regard to any particular
category of claim;
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| | (b)
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does not apply where the claimant uses the
procedure set out in Section II of this Part;
and
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|
| | (c)
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does not apply where the claimant seeks an
interim possession order under Section III of this Part except where the court
orders otherwise or that Section so provides.
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Cross reference in Rule 55.2 substituted w/e from 1 October 2005,
Rule 55.2 amended, (b) new paragraph (c) inserted w/e from 2 December 2002. |
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Starting the claim
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55.3 |
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| | (1)
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The claim must be started in the county court for the
district in which the land is situated unless paragraph (2) applies or an
enactment provides otherwise.
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|
| | (2)
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The claim may be started in the High Court if the
claimant files with his claim form a certificate stating the reasons for
bringing the claim in that court verified by a statement of truth in accordance
with rule 22.1(1).
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| | (3)
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The practice direction refers to circumstances which
may justify starting the claim in the High Court.
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| | (4)
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Where, in a possession claim against trespassers, the
claimant does not know the name of a person in occupation or possession of the
land, the claim must be brought against ‘persons unknown’ in
addition to any named defendants.
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|
| | (5)
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The claim form and form of defence sent with it must
be in the forms set out in the relevant practice direction.
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Particulars of claim
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55.4 |
The particulars of claim must be filed and served
with the claim form.
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(The relevant practice direction and Part 16 provide
details about the contents of the particulars of claim)
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Hearing date
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55.5 |
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| | (1)
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The court will fix a date for the hearing when it
issues the claim form.
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| | (2)
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In a possession claim against trespassers the
defendant must be served with the claim form, particulars of claim and any
witness statements –
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| | (a)
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in the case of residential property, not less
than 5 days; and
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|
| | (b)
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in the case of other land, not less than 2
days,
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before the hearing date.
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|
| | (3)
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In all other possession claims –
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| | (a)
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the hearing date will be not less than 28 days
from the date of issue of the claim form;
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|
| | (b)
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the standard period between the issue of the
claim form and the hearing will be not more than 8 weeks; and
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| | (c)
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the defendant must be served with the claim
form and particulars of claim not less than 21 days before the hearing
date.
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(Rule 3.1(2)(a) provides that the court may extend or
shorten the time for compliance with any rule)
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Service of claims against
trespassers
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55.6 |
Where, in a possession claim against trespassers, the
claim has been issued against ‘persons unknown’, the claim form,
particulars of claim and any witness statements must be served on those persons
by –
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| | (a)
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| | (i)
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attaching copies of the claim form,
particulars of claim and any witness statements to the main door or some other
part of the land so that they are clearly visible; and
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| | (ii)
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if practicable, inserting copies of those
documents in a sealed transparent envelope addressed to ‘the
occupiers’ through the letter box; or
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| | (b)
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placing stakes in the land in places where they
are clearly visible and attaching to each stake copies of the claim form,
particulars of claim and any witness statements in a sealed transparent
envelope addressed to ‘the occupiers’.
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Defendant's response
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55.7 |
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| | (1)
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An acknowledgment of service is not required and Part
10 does not apply.
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| | (2)
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In a possession claim against trespassers rule 15.2 does not apply and the defendant need not file a defence.
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| | (3)
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Where, in any other possession claim, the defendant
does not file a defence within the time specified in rule 15.4, he may take
part in any hearing but the court may take his failure to do so into account
when deciding what order to make about costs.
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| | (4)
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Part 12 (default judgment) does not apply in a claim
to which this Part applies.
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The hearing
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55.8 |
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| | (1)
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At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may –
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| | (b)
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give case management directions.
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| | (2)
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Where the claim is genuinely disputed on grounds
which appear to be substantial, case management directions given under
paragraph (1)(b) will include the allocation of the claim to a track or
directions to enable it to be allocated.
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| | (3)
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Except where –
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| | (a)
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the claim is allocated to the fast track or the
multi-track; or
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| | (b)
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the court orders otherwise,
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any fact that needs to be proved by the evidence of
witnesses at a hearing referred to in paragraph (1) may be proved by evidence
in writing.
(Rule 32.2(1) sets out the general rule about evidence.
Rule 32.2(2) provides that rule 32.2(1) is subject to any provision to the
contrary)
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| | (4)
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Subject to paragraph (5), all witness statements must
be filed and served at least 2 days before the hearing.
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| | (5)
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In a possession claim against trespassers all witness
statements on which the claimant intends to rely must be filed and served with
the claim form.
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| | (6)
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Where the claimant serves the claim form and
particulars of claim, the
claimant must produce at the
hearing a certificate of service of those documents and rule 6.17(2)(a) does not
apply.
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| Text substituted in Rule 55.8(6) w/e from 1 October 2008. |
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Allocation
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55.9 |
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| | (1)
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When the court decides the track for a possession
claim, the matters to which it shall have regard include –
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| | (a)
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the matters set out in rule 26.8 as modified by
the relevant practice direction;
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the amount of any arrears of rent or mortgage instalments;
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| | (c)
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the importance to the defendant of retaining
possession of the land;
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| | (d)
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the importance of vacant possession to the
claimant; and
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| | (e)
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if applicable, the alleged
conduct of the defendant
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| | (2)
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The court will only allocate possession claims to the
small claims track if all the parties agree.
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| | (3)
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Where a possession claim has been allocated to the
small claims track the claim shall be treated, for the purposes of costs, as if
it were proceeding on the fast track except that trial costs shall be in the
discretion of the court and shall not exceed the amount that would be
recoverable under rule 46.2 (amount of fast track costs) if the value of the
claim were up to £3,000.
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| | (4)
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Where all the parties agree the court may, when it
allocates the claim, order that rule 27.14 (costs on the small claims track)
applies and, where it does so, paragraph (3) does not apply.
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| New sub-para (e) added after Rule 55.9(d) w/e from 30 June 2004. |
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Possession claims relating to mortgaged residential
property
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55.10 |
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| | (1)
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This rule applies where a mortgagee seeks possession
of land which consists of or includes residential property.
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|
| | (2)
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Not less than 14 days before the hearing the claimant
must send a notice to the property addressed to ‘the
occupiers’.
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|
| | (3)
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The notice referred to in paragraph (2) must
–
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| | (a)
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state that a possession claim for the property
has started;
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| | (b)
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show the name and address of the claimant, the
defendant and the court which issued the claim form; and
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| | (c)
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give details of the hearing.
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| | (4)
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The claimant must produce at the hearing
–
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| | (a)
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a copy of the notice; and
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| | (b)
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evidence that he has served it.
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Electronic issue of certain possession
claims
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55.10A |
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| | (1)
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A practice direction may make
provision for a claimant to start certain types of possession claim in certain
courts by requesting the issue of a claim form electronically.
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| | (2)
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The practice direction may, in
particular –
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| | (a)
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provide that only particular
provisions apply in specific courts;
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| | (b)
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specify –
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| | (i)
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the type of possession
claim which may be issued electronically;
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| | (ii)
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the conditions that a
claim must meet before it may be issued electronically;
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| | (c)
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specify the court where the
claim may be issued;
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| | (d)
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enable the parties to make
certain applications or take further steps in relation to the claim
electronically;
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|
| | (e)
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specify the requirements that
must be fulfilled in relation to such applications or steps;
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| | (f)
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enable the parties to
correspond electronically with the court about the claim;
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| | (g)
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specify the requirements that
must be fulfilled in relation to electronic correspondence;
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| | (h)
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provide how any fee payable
on the filing of any document is to be paid where the document is filed
electronically.
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| | (3)
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The Practice Direction may disapply
or modify these Rules as appropriate in relation to possession claims started
electronically.
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| New Rule 55.10A inserted w/e from 1 October 2005. |
II
ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED
SHORTHOLD TENANCY
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When this section may be used
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55.11 |
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| | (1)
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The claimant may bring a possession claim under this
Section of this Part where –
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| | (a)
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the claim is brought under section 21 of the
1988 Act3 to
recover possession of residential property let under an assured shorthold
tenancy; and
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| | (2)
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The claim must be started in the county court for the
district in which the property is situated.
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|
| | (3)
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In this Section of this Part, a
‘demoted assured shorthold tenancy’ means a demoted tenancy where
the landlord is a registered social landlord.
(By virtue of section 20B of the 1988 Act, a demoted
assured shorthold tenancy is an assured shorthold
tenancy)
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Conditions
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55.12 |
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| | (1)
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The conditions referred to in rule 55.11(1)(b) are
that –
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| | (a)
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the tenancy and any agreement for the tenancy
were entered into on or after 15 January 1989;
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| | (b)
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the only purpose of the claim is to recover
possession of the property and no other claim is made;
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| | (c)
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the tenancy did not immediately follow an
assured tenancy which was not an assured shorthold tenancy;
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| | (d)
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the tenancy fulfilled the conditions provided
by section 19A or 20(1)(a) to (c) of the 1988 Act4;
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| | (e)
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the tenancy –
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| | (i)
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was the subject of a written
agreement;
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| | (ii)
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arises by virtue of section 5 of the 1988
Act but follows a tenancy that was the subject of a written agreement;
or
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| | (iii)
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relates to the same or substantially the
same property let to the same tenant and on the same terms (though not
necessarily as to rent or duration) as a tenancy which was the subject of a
written agreement; and
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| | (f)
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a notice in accordance with sections 21(1) or
21(4) of the 1988 Act5 was
given to the tenant in writing.
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| | (2)
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If the tenancy is a demoted assured
shorthold tenancy, only the conditions in paragraph (1)(b) and (f) need be
satisfied.
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| In Rule 56.2 exisiting text renumbered as (1) and new (2) added w/e from 30 June 2004. |
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Claim form
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55.13 |
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| | (1)
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The claim form must –
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| | (a)
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be in the form set out in the relevant practice
direction; and
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| | (b)
| |
| | (i)
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contain such information; and
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| | (ii)
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be accompanied by such documents,
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as are required by that form.
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|
| | (2)
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All relevant sections of the form must be
completed.
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| | (3)
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The court will serve the claim form by first class
post (or an alternative
service which provides for delivery on the next working day).
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| Rule 55.13(3) amended
w/e from 6 April 2006. |
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Defence
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55.14 |
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| | (1)
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A defendant who wishes to –
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| | (b)
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seek a postponement of possession in accordance
with rule 55.18,
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must file his defence within 14 days after service of
the claim form.
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|
| | (2)
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The defence should be in the form set out in the
relevant practice direction.
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Claim referred to judge
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55.15 |
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| | (1)
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On receipt of the defence the court will
–
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| | (a)
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send a copy to the claimant; and
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| | (b)
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refer the claim and defence to a judge.
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| | (2)
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Where the period set out in rule 55.14 has expired
without the defendant filing a defence –
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| | (a)
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the claimant may file a written request for an
order for possession; and
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| | (b)
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the court will refer that request to a
judge.
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|
| | (3)
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Where the defence is received after the period set
out in rule 55.14 has expired but before a request is filed in accordance with
paragraph (2), paragraph (1) will still apply.
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|
| | (4)
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Where –
|
| | (a)
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the period set out in rule 55.14 has expired
without the defendant filing a defence; and
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|
| | (b)
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the claimant has not made a request for an
order for possession under paragraph (2) within 3 months after the expiry of
the period set out in rule 55.14,
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the claim will be stayed.
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Consideration of the claim
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55.16 |
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| | (1)
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After considering the claim and any defence, the
judge will –
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| | (a)
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make an order for possession under rule
55.17;
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|
| | (b)
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where he is not satisfied as to any of the
matters set out in paragraph (2) –
|
| | (i)
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direct that a date be fixed for a
hearing; and
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|
| | (ii)
|
give any appropriate case management
directions; or
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|
| | (c)
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strike out the claim if the claim form discloses no reasonable grounds for bringing the claim.
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|
| | (2)
|
The matters referred to in paragraph (1)(b) are that
–
|
| | (b)
|
the claimant has established that he is
entitled to recover possession under section 21 of the 1988 Act against the
defendant.
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|
| | (3)
|
The court will give all parties not less than 14
days' notice of a hearing fixed under paragraph (1)(b)(i).
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|
| | (4)
|
Where a claim is struck out under paragraph (1)(c)
–
|
| | (a)
|
the court will serve its reasons for striking
out the claim with the order; and
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|
| | (b)
|
the claimant may apply to restore the claim
within 28 days after the date the order was served on him
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Possession order
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55.17 |
Except where rules 55.16(1)(b) or (c) apply, the
judge will make an order for possession without requiring the attendance of the
parties.
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Postponement of possession
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55.18 |
|
| | (1)
|
Where the defendant seeks postponement of possession
on the ground of exceptional hardship under section 89 of the Housing Act 19806, the
judge may direct a hearing of that issue.
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|
| | (2)
|
Where the judge directs a hearing under paragraph (1)
–
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| | (a)
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the hearing must be held before the date on
which possession is to be given up; and
|
|
| | (b)
|
the judge will direct how many days' notice the
parties must be given of that hearing.
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|
| | (3)
|
Where the judge is satisfied, on a hearing directed
under paragraph (1), that exceptional hardship would be caused by requiring
possession to be given up by the date in the order of possession, he may vary
the date on which possession must be given up.
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Application to set aside or vary
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55.19 |
The court may
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| | (a)
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on application by a party within 14 days of
service of the order; or
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|
| | (b)
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of its own initiative,
|
set aside or vary any order made under rule
55.17.
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|
III
INTERIM POSSESSION ORDERS
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|
When this section may be used
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|
55.20 |
|
| | (1)
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This Section of this Part applies where the claimant
seeks an Interim Possession Order.
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|
| | (2)
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In this section –
|
| | (a)
|
‘IPO’ means Interim Possession
Order; and
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|
| | (b)
|
‘premises’ has the same meaning as
in section 12 of the Criminal Law Act 1977Acts7.
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|
|
| | (3)
|
Where this Section requires an act to be done within
a specified number of hours, rule 2.8(4) does not apply.
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|
Rule 55.20 inserted w/e from 2 December 2002,
Section III inserted w/e from 2 December 2002. |
|
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Conditions for IPO application
|
|
55.21 |
|
| | (1)
|
An application for an IPO may be made where the
following conditions are satisfied –
|
| | (a)
|
the only claim made is a possession claim
against trespassers for the recovery of premises;
|
|
| | (b)
|
the claimant –
|
| | (i)
|
has an immediate right to possession of
the premises; and
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|
| | (ii)
|
has had such a right throughout the
period of alleged unlawful occupation; and
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|
|
| | (c)
|
the claim is made within 28 days of the date
on which the claimant first knew, or ought reasonably to have known, that the
defendant (or any of the defendants), was in occupation.
|
|
|
| | (2)
|
An application for an IPO may not be made against a
defendant who entered or remained on the premises with the consent of a person
who, at the time consent was given, had an immediate right to possession of the
premises.
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| Rule 55.21 inserted w/e from 2 December 2002. |
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The application
|
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55.22 |
|
| | (2)
|
The claim form and the defendant's form of witness
statement must be in the form set out in the relevant practice
direction.
|
|
| | (3)
|
When he files his claim form, the claimant must also
file –
|
| | (a)
|
an application notice in the form set out in
the relevant practice direction; and
|
|
|
| | (4)
|
The written evidence must be given –
|
| | (a)
|
by the claimant personally; or
|
|
| | (b)
|
where the claimant is a body corporate, by a
duly authorised officer.
|
|
(Rule 22.1(6)(b) provides that the statement of truth
must be signed by the maker of the witness statement)
|
|
| | (5)
|
The court will –
|
| | (a)
|
issue –
|
| | (ii)
|
the application for the IPO; and
|
|
|
| | (b)
|
set a date for the hearing of the
application.
|
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|
| | (6)
|
The hearing of the application will be as soon as
practicable but not less than 3 days after the date of issue.
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|
| Rule 55.22 inserted w/e from 2 December 2002. |
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Service
|
|
55.23 |
|
| | (1)
|
Within 24 hours of the issue of the application, the
claimant must serve on the defendant –
|
| | (b)
|
the application notice together with the
written evidence in support; and
|
|
| | (c)
|
a blank form for the defendant's witness
statement (as set out in the relevant practice direction) which must be
attached to the application notice.
|
|
|
| | (2)
|
The claimant must serve the documents listed in
paragraph (1) in accordance with rule 55.6(a).
|
|
| | (3)
|
At or before the hearing the claimant must file a
certificate of service in relation to the documents listed in paragraph (1) and
rule 6.17(2)(a)
does not apply.
|
|
Rule 55.23 inserted w/e from 2 December 2002,
Text substituted in Rule 55.23(3) w/e from 1 October 2008. |
|
|
Defendant's response
|
|
55.24 |
|
| | (1)
|
At any time before the hearing the defendant may file
a witness statement in response to the application.
|
|
| | (2)
|
The witness statement should be in the form set out
in the relevant practice direction.
|
|
| Rule 55.24 inserted w/e from 2 December 2002. |
|
|
Hearing of the application
|
|
55.25 |
|
| | (1)
|
In deciding whether to grant an IPO, the court will
have regard to whether the claimant has given, or is prepared to give, the
following undertakings in support of his application –
|
| | (a)
|
if, after an IPO is made, the court decides
that the claimant was not entitled to the order to –
|
| | (i)
|
reinstate the
defendant if so ordered by the court; and
|
|
| | (ii)
|
pay such damages as the court may order;
and
|
|
|
| | (b)
|
before the claim for possession is finally
decided, not to –
|
| | (ii)
|
grant a right of occupation to any other
person; and
|
|
| | (iii)
|
damage or
dispose of any of the defendant's property.
|
|
|
|
| | (2)
|
The court will make an IPO if –
|
| | (a)
|
the claimant has –
|
| | (ii)
|
proved service of those documents to the
satisfaction of the court; and
|
|
|
| | (b)
|
the court considers that –
|
| | (ii)
|
any undertakings given by the claimant as
a condition of making the order are adequate.
|
|
|
|
| | (3)
|
An IPO will be in the form set out in the relevant
practice direction and will require the defendant to vacate the premises
specified in the claim form within 24 hours of the service of the order.
|
|
| | (4)
|
On making an IPO the court will set a date for the
hearing of the claim for possession which will be not less than 7 days after
the date on which the IPO is made.
|
|
| | (5)
|
Where the court does not make an IPO –
|
| | (a)
|
the court will set a date for the hearing of
the claim;
|
|
| | (b)
|
the court may give directions for the future
conduct of the claim; and
|
|
| | (c)
|
subject to such directions, the claim shall
proceed in accordance with Section I of this Part.
|
|
|
| Rule 55.25 inserted w/e from 2 December 2002. |
|
|
Service and enforcement of the IPO
|
|
55.26 |
|
| | (1)
|
An IPO must be served within 48 hours after it is
sealed.
|
|
| | (2)
|
The claimant must serve the IPO on the defendant
together with copies of
|
| | (b)
|
the written evidence in support, in accordance
with rule 55.6(a).
|
|
|
| | (4)
|
If an IPO is not served within the time limit
specified by this rule, the claimant may apply to the court for directions for
the claim for possession to continue under Section I of this Part.
|
|
| Rule 55.26 inserted w/e from 2 December 2002. |
|
|
After IPO made
|
|
55.27 |
|
| | (1)
|
Before the date for the hearing of the claim, the
claimant must file a certificate of service in relation to the documents
specified in rule 55.26(2).
|
|
| | (2)
|
The IPO will expire on the date of the hearing of the
claim.
|
|
| | (3)
|
At the hearing the court may make any order it
considers appropriate and may, in particular –
|
| | (a)
|
make a final order for possession;
|
|
| | (b)
|
dismiss the claim for possession;
|
|
| | (c)
|
give directions for the claim for possession
to continue under Section I of this Part; or
|
|
| | (d)
|
enforce any of the claimant's
undertakings.
|
|
|
| | (4)
|
Unless the court directs otherwise, the claimant must
serve any order or directions in accordance with rule 55.6(a).
|
|
| Rule 55.27 inserted w/e from 2 December 2002. |
|
|
Application to set aside IPO
|
|
55.28 |
|
| | (1)
|
If the defendant has left the premises, he may apply
on grounds of urgency for the IPO to be set aside before the date of the
hearing of the claim.
|
|
| | (2)
|
An application under paragraph (1) must be supported
by a witness statement.
|
PD 1B" name="IDABPD 1B">|
| | (3)
|
On receipt of the application, the court will give
directions as to –
PD 1B" name="IDAIPD 1B">|
| | (a)
|
the date for the hearing; and
|
PD 1B" name="IDASPD 1B">|
| | (b)
|
the period of notice, if any, to be given to
the claimant and the method of service of any such notice.
|
|
|
| | (4)
|
No application to set aside an IPO may be made under
rule 39.3.
|
|
| | (5)
|
Where no notice is required under paragraph (3)(b),
the only matters to be dealt with at the hearing of the application to set
aside are whether –
|
| | (a)
|
the IPO should be set aside; and
|
|
| | (b)
|
any undertaking to re-instate the defendant
should be enforced,
|
and all other matters will be dealt with at the
hearing of the claim.
|
|
|
| | (6)
|
The court will serve on all the parties –
|
| | (a)
|
a copy of the order made under paragraph (5);
and
|
|
| | (b)
|
where no notice was required under paragraph
(3)(b), a copy of the defendant's application to set aside and the witness
statement in support.
|
|
|
| | (7)
|
Where notice is required under paragraph (3)(b), the
court may treat the hearing of the application to set aside as the hearing of
the claim.
|
|
| Rule 55.28 inserted w/e from 2 December 2002. |
