What happens at a possession hearing?

Between spiralling cost of living, stagnant wages and growing rent arrears, the number of tenant evictions has been steadily climbing. 

More than 22,500 landlords filed possession claims between April and June last year alone, government figures showed – a sharp increase of nearly a quarter on the same period in 2022. The claims often lead to possession hearings in court, which decide the tenant’s fate. 

The prospect of a possession hearing can feel overwhelming for tenants already facing the daunting possibility of losing their home – going before a judge is intimidating for nearly everyone. It can be tricky to know what to expect or how to navigate the court process. But possession hearings are an essential part of the legal process in the UK, designed to give both the landlord and tenant an opportunity to present their cases fairly.

What is a possession hearing?

A possession hearing, also known as an eviction hearing, is a court session where a judge or sheriff (in Scotland) decides whether or not a landlord can legally repossess a property from – in other words, evict – a tenant. The landlord might seek a possession order for various reasons, but the most common is rent arrears. Landlords can also apply for possession by citing other reasons, such as damage to the property or breach of the tenancy agreement. In most of the UK, they can apply to evict without a reason too.

The key point for tenants to remember is that possession hearings aren’t just a formality. Judges carefully consider the evidence from both the landlord and the tenant before making a decision. The landlord’s request for eviction – and the steps they’ve taken to get to that point – must meet specific legal requirements, and tenants are allowed to defend their case.

Say, for example, a tenant has fallen behind on rent after losing their job. The landlord, who has tried and failed to get those payments from the tenant, can issue an eviction notice and later apply for a possession order. 

It’s important to remember that you don’t have to move out as soon as you receive an eviction notice. If your landlord tries to remove you before going to court and being granted a possession order, this could be considered an illegal eviction.

The court will then send a summons to the tenant to attend a possession hearing, where they should have the chance to explain their financial situation and show that they are making an effort to catch up on rent. The judge might then suspend the eviction order, letting the tenant stay in the property under certain conditions like paying off the arrears in instalments.

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Possession hearings are usually the final step after a landlord has issued the necessary notice and waited out the required period. There are different types of notices a landlord can use depending on where you are. The most commonly used are section 8 and section 21 notices in England: section 8 notices are used when a tenant has breached the terms of their tenancy (which usually includes not paying rent), while section 21 notices are “no-fault” evictions, where the landlord doesn’t need to give a reason for wanting possession. A court will sometimes grant a possession claim without a hearing if the landlord uses a section 21.

The process in other areas varies a little in process and in name – in Scotland, for example, no-fault evictions are essentially banned – but the basic premise no matter where you are is that a court decides whether the landlord’s claim for possession is valid.

There are a couple of extra steps involved for people living in social housing and their landlords. Before a social landlord can bring a possession claim to court, they have to follow what’s known as the rent arrears pre-action protocol, which is supposed to resolve rent arrear problems without legal action and only end in eviction as a last resort. 

It encourages social landlords to engage with tenants, offer financial advice and give them a chance to negotiate repayment plans so that arrears can be cleared before their landlord pursues it in court. They’ll also often direct tenants to benefits advisers or debt management services to help them get on top of their finances. If the case does go to court but the social landlord hasn’t followed this protocol, the judge might suspend the hearing until other avenues have been exhausted.

Who should go?

Attending the hearing is critical for tenants. Even if the case seems hopeless, or if the tenant feels embarrassed about rent arrears or other issues, being at the hearing gives them a voice in the process. If you can’t go, you must let the court know and explain why.

The landlord may have a legitimate claim, but tenants can also raise defences like the landlord failing to follow the correct procedures, giving them an invalid eviction notice, or not keeping the property in as good a condition as is required by the law.

Tenants facing a possession hearing should strongly consider taking an adviser with them to court. Courts usually have duty advisers available on the day of the hearing to offer free, last-minute advice to tenants (make sure you arrive at least 30 minutes early so you have time to speak to one). Use your postcode to find more details on legal aid through the government’s website.

It’s also a good idea to arrange support beforehand by contacting organisations such as Citizens Advice, Shelter or a local housing advice service. They can explain the legal grounds of the landlord’s case, help prepare documents and speak for you in court. Getting third-party help will not only boost your chances of being treated fairly in court but will also ease some of the pressure of navigating a web of legalities alone. 

You should take all the relevant paperwork that can help your case when you go to a possession hearing. This includes the tenancy agreement, which could help you highlight any inaccuracies or ambiguities in the landlord’s claim. Rent payment records plus any correspondence with the landlord – think emails or letters discussing rent, repairs or any other issues – could also be helpful. 

Proof of the steps you’ve taken to improve your situation, particularly if your landlord is trying to evict you because of rent arrears, can be crucial in winning the right to stay in your home. That might mean bank statements, applications for benefits, proof of income from a new job or records of debt advice. Take medical records or a note from your doctor if health problems are a factor in your situation – in general, you’re trying to paint as detailed a picture as possible for the judge to fully understand your circumstances.

Landlords don’t always have to go to the hearing themselves, sometimes choosing to send a solicitor to act on their behalf instead, but many do attend. If neither the tenant nor landlord is at the hearing, the judge is likely to make a decision based solely on the written evidence which might not work out in the tenant’s favour. 

Landlords who weren’t represented at all in court, or chose to be represented by a solicitor rather than attending court themselves, were much more likely to see the case adjourned thanks to mistakes in the paperwork according to Dan Cumming, policy officer for the National Residential Landlords Association, after attending a number of possession hearings earlier this year. Those who’d used the possession claim online portal under section 21 notices – which is a relatively straightforward process for landlords – left spelling errors and missed important legal factors, like breathing space debt moratoriums, when applying to evict their tenant.

“Given this, it is likely that fewer landlords will be able to self-represent successfully when section 21 goes away,” said Cumming. The government plans to scrap section 21 no-fault evictions by next summer through the Renters’ Rights Bill.

“Many landlords at the moment use the section 21 notice because they can complete the forms themselves and have a good chance of success with it. This is unlikely to be the case post-rental reform unless there are significant improvements to the guidance provided to claimants. 

“This has potentially negative consequences for tenants as well. Most of the section 8 claims where landlords were represented were successful. Almost all of the successful claims included a money judgement for the landlord’s legal fees, usually adding £1,000-£2,000 on to the costs owed by the tenant.”

What happens during the hearing?

The court will send you documents beforehand which will outline the landlord’s reasons for evicting you, as well as forms for you to fill in. It’s important to check the details of these papers and of the eviction notice your landlord gave you because the possession claim could be thrown out if these aren’t valid in the eyes of the law.

The actual possession hearing itself tends to be shorter and less formal than many tenants expect – it could be as short as 10 to 15 minutes – but it should be taken seriously. 

When a tenant arrives at court (or tribunal, in Scotland), they’ll usually check in at reception or with a court usher who will instruct you on where to go next. They can also direct you to a duty housing adviser if you want to speak with one.

In the courtroom, the landlord or their solicitor will first present their case to the judge or sheriff. This will typically involve explaining the grounds for possession – the reasons for evicting the tenant – which might mean detailing the amount of rent arrears owed, or specific ways in which the renter breached their tenancy agreement. The landlord might also give evidence like rent statements, tenancy agreements or copies of the eviction notices previously issued.

The tenant will then have the chance to respond, which is where attending the hearing can make all the difference. Even if the tenant agrees that they owe rent, they can explain their financial situation and emphasise any steps they’ve taken to get help with rent or any legal defences they have. (If the tenant can argue that the landlord hasn’t followed the correct process, the judge might decide to dismiss or postpone the case.)

The judge or sheriff will then make a decision and if they grant a possession order, the tenant will usually be given a date (often 14 or 28 days after the hearing) by which they have to move out of the home. The order will be sent by post, but it could take effect before it’s delivered – if it says you have 14 days to leave and is dated earlier than when you received the order, it still applies and does not mean you can take an extra day or two to leave the property.

If the tenant doesn’t comply with the possession order – this usually means not leaving the property when they’re supposed to – the landlord can apply for a warrant of possession, which means bailiffs can be sent to remove the tenant. In this scenario you’ll usually be sent a notice of eviction, letting you know in advance when this will take place.

If a judge hears all the evidence and decides to suspend the possession claim, it means that the case is temporarily put on hold and the tenant allowed to stay in the home under certain conditions. This usually happens when the judge believes the tenant has a legitimate defence or has taken meaningful steps to fix the problem, like making and presenting a convincing plan to pay off rent arrears. 

Those conditions might include making regular payments towards the outstanding rent over a set period, and if the tenant sticks to the terms then the eviction could be delayed or avoided entirely.

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