F1PART 55POSSESSION CLAIMS
Words in Pt. 55 Table of Contents inserted (2.12.2002) by The Civil Procedure (Amendment) Rules 2002 (S.I. 2002/2058), rule 1(b), Sch. 3 Pt. 1
Contents of this part | |
Interpretation | Rule 55.1 |
I–GENERAL RULES | |
Scope | Rule 55.2 |
Starting the claim | Rule 55.3 |
Particulars of claim | Rule 55.4 |
Hearing date | Rule 55.5 |
Service of claims against trespassers | Rule 55.6 |
Defendant’s response | Rule 55.7 |
The hearing | Rule 55.8 |
Allocation | Rule 55.9 |
Possession claims relating to mortgaged residential property | Rule 55.10 |
II–ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED SHORTHOLD TENANCY | |
When this section may be used | Rule 55.11 |
Conditions | Rule 55.12 |
Claim form | Rule 55.13 |
Defence | Rule 55.14 |
Claim referred to judge | Rule 55.15 |
Consideration of the claim | Rule 55.16 |
Possession order | Rule 55.17 |
Postponement of possession | Rule 55.18 |
Application to set aside or vary | Rule 55.19 |
F6SECTION III—INTERIM POSSESSION ORDERS | |
When this section may be used | Rule 55.20 |
Conditions for IPO application | Rule 55.21 |
The application | Rule 55.22 |
Service | Rule 55.23 |
Defendant’s response | Rule 55.24 |
Hearing of the application | Rule 55.25 |
Service and enforcement of the IPO | Rule 55.26 |
After IPO made | Rule 55.27 |
Application to set aside IPO | Rule 55.28 |
Interpretation55.1
In this Part—
a
“a possession claim” means a claim for the recovery of possession of land (including buildings or parts of buildings);
b
“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;
c
“mortgage” includes a legal or equitable mortgage and a legal or equitable charge and “mortgagee” is to be interpreted accordingly; F8...
F7d
“the 1985 Act” means the Housing Act 1985;
e
“the 1988 Act” means the Housing Act 1988;
f
“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”); F18...
g
“a demoted tenancy” means a tenancy created by virtue of a demotion orderF17; and
h
“a suspension claim” means a claim made by a landlord for an order under section 121A of the 1985 Act.
I–GENERAL RULES
Scope55.2
1
The procedure set out in this Section of this Part must be used where the claim includes—
a
a possession claim brought by a—
i
landlord (or former landlord);
ii
mortgagee; or
iii
licensor (or former licensor);
b
a possession claim against trespassers; or
c
a claim by a tenant seeking relief from forfeiture.
F19(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).
2
This Section of this Part
a
is subject to any enactment or practice direction which sets out special provisions with regard to any particular category of claim; F2...
b
does not apply where the claimant uses the procedure set out in Section II of this Part F3; and
c
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
F4...
Starting the claim55.3
1
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.
2
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).
3
The practice direction refers to circumstances which may justify starting the claim in the High Court.
4
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.
5
The claim form and form of defence sent with it must be in the forms set out in the relevant practice direction.
Particulars of claim55.4
The particulars of claim must be filed and served with the claim form.
(The relevant practice direction and Part 16 provide details about the contents of the particulars of claim)
Hearing date55.5
1
The court will fix a date for the hearing when it issues the claim form.
2
In a possession claim against trespassers the defendant must be served with the claim form, particulars of claim and any witness statements—
a
in the case of residential property, not less than 5 days; and
b
in the case of other land, not less than 2 days,
before the hearing date.
3
In all other possession claims—
a
the hearing date will be not less than 28 days from the date of issue of the claim form;
b
the standard period between the issue of the claim form and the hearing will be not more than 8 weeks; and
c
the defendant must be served with the claim form and particulars of claim not less than 21 days before the hearing date.
(Rule 3.1(2)(a) provides that the court may extend or shorten the time for compliance with any rule)
Service of claims against trespassers55.6
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—
a
i
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
ii
if practicable, inserting copies of those documents in a sealed transparent envelope addressed to “the occupiers” through the letter box; or
b
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”.
Defendant’s response55.7
1
An acknowledgment of service is not required and Part 10 does not apply.
2
In a possession claim against trespassers rule 15.2 does not apply and the defendant need not file a defence.
3
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.
4
Part 12 (default judgment) does not apply in a claim to which this Part applies.
The hearing55.8
1
At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may—
a
decide the claim; or
b
give case management directions.
2
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.
3
Except where—
a
the claim is allocated to the fast track or the multi-track; or
b
the court orders otherwise,
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)
4
Subject to paragraph (5), all witness statements must be filed and served at least 2 days before the hearing.
5
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.
6
Where the claimant serves the claim form and particulars of claim, he must produce at the hearing a certificate of service of those documents and rule 6.14(2)(a) does not apply.
Allocation55.9
1
When the court decides the track for a possession claim, the matters to which it shall have regard include—
a
the matters set out in rule 26.8 as modified by the relevant practice direction;
b
the amount of any arrears of rent or mortgage instalments;
c
the importance to the defendant of retaining possession of the land; F9...
d
the importance of vacant possession to the claimant F10; and
e
if applicable, the alleged conduct of the defendant
2
The court will only allocate possession claims to the small claims track if all the parties agree.
3
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.
4
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.
Possession claims relating to mortgaged residential property55.10
1
This rule applies where a mortgagee seeks possession of land which consists of or includes residential property.
2
Not less than 14 days before the hearing the claimant must send a notice to the property addressed to “the occupiers”.
3
The notice referred to in paragraph (2) must—
a
state that a possession claim for the property has started;
b
show the name and address of the claimant, the defendant and the court which issued the claim form; and
c
give details of the hearing.
4
The claimant must produce at the hearing—
a
a copy of the notice; and
b
evidence that he has served it.
F16Electronic issue of certain possession claims55.10A
1
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.
2
The practice direction may, in particular—
a
provide that only particular provisions apply in specific courts;
b
specify—
i
the type of possession claim which may be issued electronically;
ii
the conditions that a claim must meet before it may be issued electronically;
c
specify the court where the claim may be issued;
d
enable the parties to make certain applications or take further steps in relation to the claim electronically;
e
specify the requirements that must be fulfilled in relation to such applications or steps;
f
enable the parties to correspond electronically with the court about the claim;
g
specify the requirements that must be fulfilled in relation to electronic correspondence;
h
provide how any fee payable on the filing of any document is to be paid where the document is filed electronically.
3
The Practice Direction may disapply or modify these Rules as appropriate in relation to possession claims started electronically.
II–ACCELERATED POSSESSION CLAIMS OF PROPERTY LET ON AN ASSURED SHORTHOLD TENANCY
When this section may be used55.11
1
The claimant may bring a possession claim under this Section of this Part where—
a
the claim is brought under section 21 of the 1988 Act12 to recover possession of residential property let under an assured shorthold tenancy; and
2
The claim must be started in the county court for the district in which the property is situated.
F113
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)
Conditions55.12
F141
The conditions referred to in rule 55.11(1)(b) are that—
a
the tenancy and any agreement for the tenancy were entered into on or after 15 January 1989;
b
the only purpose of the claim is to recover possession of the property and no other claim is made;
c
the tenancy did not immediately follow an assured tenancy which was not an assured shorthold tenancy;
d
the tenancy fulfilled the conditions provided by section 19A or 20(1)(a) to (c) of the 1988 Act13;
e
the tenancy—
i
was the subject of a written agreement;
ii
arises by virtue of section 5 of the 1988 Act but follows a tenancy that was the subject of a written agreement; or
iii
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
f
a notice in accordance with sections 21(1) or 21(4) of the 1988 Act14 was given to the tenant in writing.
F152
If the tenancy is a demoted assured shorthold tenancy, only the conditions in paragraph (1)(b) and (f) need be satisfied.
Claim form55.13
1
The claim form must—
a
be in the form set out in the relevant practice direction; and
b
i
contain such information; and
ii
be accompanied by such documents,
as are required by that form.
2
All relevant sections of the form must be completed.
3
The court will serve the claim form by first class post F20(or an alternative service which provides for delivery on the next working day).
Defence55.14
1
A defendant who wishes to—
a
oppose the claim; or
b
seek a postponement of possession in accordance with rule 55.18,
must file his defence within 14 days after service of the claim form.
2
The defence should be in the form set out in the relevant practice direction.
Claim referred to judge55.15
1
On receipt of the defence the court will—
a
send a copy to the claimant; and
b
refer the claim and defence to a judge.
2
Where the period set out in rule 55.14 has expired without the defendant filing a defence—
a
the claimant may file a written request for an order for possession; and
b
the court will refer that request to a judge.
3
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.
4
Where—
a
the period set out in rule 55.14 has expired without the defendant filing a defence; and
b
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,
the claim will be stayed.
Consideration of the claim55.16
1
After considering the claim and any defence, the judge will—
a
make an order for possession under rule 55.17;
b
where he is not satisfied as to any of the matters set out in paragraph (2)—
i
direct that a date be fixed for a hearing; and
ii
give any appropriate case management directions; or
c
strike out the claim if the claim form discloses no reasonable grounds for bringing the claim.
2
The matters referred to in paragraph (1)(b) are that—
a
the claim form was served; and
b
the claimant has established that he is entitled to recover possession under section 21 of the 1988 Act against the defendant.
3
The court will give all parties not less than 14 days' notice of a hearing fixed under paragraph (1)(b)(i).
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
b
the claimant may apply to restore the claim within 28 days after the date the order was served on him.
Possession order55.17
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.
Postponement of possession55.18
1
Where the defendant seeks postponement of possession on the ground of exceptional hardship under section 89 of the Housing Act 198015, the judge may direct a hearing of that issue.
2
Where the judge directs a hearing under paragraph (1)—
a
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.
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.
Application to set aside or vary55.19
The court may—
a
on application by a party within 14 days of service of the order; or
b
of its own initiative,
set aside or vary any order made under rule 55.17.
F5SECTION III—INTERIM POSSESSION ORDERS
Pt. 55 Section 3 inserted (2.12.2002) by The Civil Procedure (Amendment) Rules 2002 (S.I. 2002/2058), rule 1(b), Sch. 3 Pt. 2
When this section may be used55.20
1
This Section of this Part applies where the claimant seeks an Interim Possession Order.
2
In this Section—
a
“IPO” means Interim Possession Order; and
b
“premises” has the same meaning as in section 12 of the Criminal Law Act 1977.
3
Where this Section requires an act to be done within a specified number of hours, rule 2.8(4) does not apply.
Conditions for IPO application55.21
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
ii
has had such a right throughout the period of alleged unlawful occupation; and
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.
The application55.22
1
Rules 55.3(1) and (4) apply to the claim.
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
b
written evidence.
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—
i
the claim form; and
ii
the application for the IPO; and
b
set a date for the hearing of the application.
6
The hearing of the application will be as soon as practicable but not less than 3 days after the date of issue.
Service55.23
1
Within 24 hours of the issue of the application, the claimant must serve on the defendant—
a
the claim form;
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 6.14(2)(a) does not apply.
Defendant’s response55.24
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.
Hearing of the application55.25
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—
i
damage the premises;
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—
i
filed a certificate of service of the documents referred to in rule 55.23(1); or
ii
proved service of those documents to the satisfaction of the court; and
b
the court considers that—
i
the conditions set out in rule 55.21(1) are satisfied; and
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.
Service and enforcement of the IPO55.26
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—
a
the claim form; and
b
the written evidence in support,
in accordance with rule 55.6(a).
3
CCR Order 26, rule 17 does not apply to the enforcement of an IPO.
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.
After IPO made55.27
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).
5
CCR Order 24, rule 6 applies to the enforcement of a final order for possession.
Application to set aside IPO55.28
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.
3
On receipt of the application, the court will give directions as to-
a
the date for the hearing; and
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.
Pt. 55 inserted (15.10.2001) by The Civil Procedure (Amendment) Rules 2001 (S.I. 2001/256), rule 1(d), Sch. 1 (with rule 31)