Absolute Orders or Suspended (Postponed) Orders

A possession order does not always mean the tenant has to leave immediately.

Sometimes the court makes an outright order. That means the tenant must vacate the property by the date specified in the order. In other cases, the court issues a suspended or postponed order, allowing the tenant to remain as long as they comply with the court’s requirements.

The usual dividing line is whether the landlord is relying on a mandatory ground or a discretionary ground under Schedule 2 to the Housing Act 1988.

Mandatory grounds

If a mandatory ground is proved, the court must make a possession order. It does not have a free choice to let the tenant stay on conditions instead.

Grounds 1 to 8 are mandatory. If one of those grounds is established, and the notice and procedure are in order, the result will usually be an outright possession order.

The landlord does not normally have to prove that making the order is reasonable. Proof of the ground is usually enough.

The court can still delay the possession date for a short period if the tenant shows exceptional hardship. That is different from a suspended order. The order is still outright. The tenant just gets a little more time before having to leave.

Discretionary grounds

With a discretionary ground, the court has to make a further judgment.

It must decide:

  • whether the ground is proved; and
  • whether it is reasonable to make a possession order.

If both questions are answered yes, the court can still decide not to require possession straight away. It may suspend or postpone the order on terms instead.

That is common in rent arrears cases, and it also happens in some anti-social behaviour claims. Judges will sometimes give the tenant one final chance, especially where there is some sign that the problem can be brought under control.

Suspended and postponed orders

A suspended or postponed order allows the tenant to remain in the property as long as they comply with the conditions of the order.

Typical conditions include:

  • paying the current rent;
  • paying a fixed amount each week or month towards arrears;
  • complying with the tenancy terms; or
  • not committing further anti-social behaviour.

If the tenant keeps to those terms, they can usually stay. If they break them, the landlord can usually move to enforce the order without issuing a completely new possession claim.

This is particularly common in arrears cases where the tenant has resumed paying properly, and the court is willing to see whether that continues.

Outright orders

An outright order requires the tenant to leave by the date stated in the order.

That is more likely where:

  • the landlord succeeds on a mandatory ground;
  • the tenant has a poor record of keeping to agreements;
  • earlier chances have already been given; or
  • the court does not think a suspended order would achieve anything.

In a serious anti-social behaviour case, for instance, the judge may conclude that there is no realistic basis for letting the tenancy continue.

Examples

Take ground 14. If the landlord proves anti-social behaviour and the tenant produces no convincing evidence that matters have improved, or are likely to improve, the court may well make an outright order.

Ground 10 can look quite different. If the claim is based on rent arrears and the tenant has started making regular payments since the claim was issued, the court may decide that a suspended order is enough.

A mandatory ground is different again. If the landlord proves one of the grounds 1 to 8, the court will usually have to make an outright possession order. It cannot turn that into a suspended order simply because the tenant’s circumstances attract sympathy.

What landlords should keep in mind

A successful claim does not always mean the tenant leaves straight away.

As a rough guide:

  • mandatory grounds usually end in an outright order if they are proved;
  • discretionary grounds may result in either an outright order or a suspended or postponed order; and
  • where arrears are involved, the tenant’s payment record in the run-up to the hearing can matter a great deal.

If a landlord wants the best chance of obtaining an outright order on discretionary grounds, the evidence usually needs to show more than a one-off breach. A pattern of non-payment or misconduct, failed promises, and no real prospect of improvement will usually carry more weight.

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