Suspending a possession order

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    Suspending a possession order

    Question for the legal boffins really.

    I issued proceedings on the back of a s21 notice, no defence filed in time J made possession order for 2 January 2009. T files a defence late (31 Dec). I knew nothing of defence and on 5 Jan applied for bailiffs.

    Court refers defence to court and J lists urgent hearing to suspend.

    I note under the special jurisdiction section of the green book (III L&T [98.1A]) (page 5744 vol 2 2008 edition) states: -


    Operation of S 89 in relation to assured shorthold tenancies. where postponement of possession is sought by a former assured shorthold tenant, on the ground of exceptional hardship under s89, the judge may direct a hearing of that issuewhich (if directed) must (my emphasis) be held before the date on which possession is to be given up.......

    My question is whether the court is able to list a hearing or consider postponement as the date of possession had passed before it tried to list a hearing.
    PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

    #2
    Section 89 of what?
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

    Comment


      #3
      sorry! of the Housing Act 1980 - the courts discretion to postpone on grounds of exceptional hardship
      PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

      Comment


        #4
        Originally posted by Paul Gibbs View Post
        Housing Act 1980 - the court's discretion to postpone on grounds of exceptional hardship
        Reading s.89(1)- with which I am not familiar- I guess that it allows postponement only:
        a. for up to 14 days from when Order made; or
        b. if that would cause hardship, then for up to 6 weeks from when Order made.

        After the relevant period expires, no hearing seems possible. However, s.89(2) sets out five exceptions.
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


          #5
          I agree - but it states in the Green Book that a hearing can only be listed before the possession date has passed - my point is that the date for possession has passed so a hearing cannot be considered.

          The problem as I see it is that the wording is not a section of the CPR, but rather notes on the special rules - I think without anything stronger a court will postpone for such period as it sees fit (up to max of 6 weeks of date of order)

          (The exceptions do not apply)
          original order made 18 Dec so we are within the window of longer than 14 days, but less than 6 weeks
          PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

          Comment


            #6
            Originally posted by Paul Gibbs View Post
            I agree - but it states in the Green Book that a hearing can only be listed before the possession date has passed - my point is that the date for possession has passed so a hearing cannot be considered.

            The problem as I see it is that the wording is not a section of the CPR, but rather notes on the special rules - I think without anything stronger a court will postpone for such period as it sees fit (up to max of 6 weeks of date of order)

            (The exceptions do not apply)
            original order made 18 Dec so we are within the window of longer than 14 days, but less than 6 weeks
            Section 88(1) does not limit the date on which the Court can sit and decide re postponement.
            Logic might lean towards taking a decision (whether possession can be postponed) only before the currently-set possession date, though.
            JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
            1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
            2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
            3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
            4. *- Contact info: click on my name (blue-highlight link).

            Comment


              #7
              section 88 is the general power of the court, whereas section 89 is a restriction on the courts power as set out in section 88. (i.e. section 89 limits the operation of section 88)

              I will no doubt be given chapter and verse on how and why the court can postpone next week and will update you - but any further views appreciated in the meantime.

              mind you the court may simply say that they think they can postpone and if I dont agree to appeal (knowing an appeal would take much longer than simply waiting for the postponed possession date to pass............)
              PAUL GIBBS, solicitor, Jacobs & Reeves. My comments on this forum are correct to the best of my knowledge and belief. No responsibility or liability is accepted by reason of reliance upon such comments. This disclaimer would not apply to direct clients of Jacobs & Reeves where there is a valid retainer in place and I would be happy to confirm any advice if formally instructed. . Jacobs & Reeves now offer a fixed fee possession service.

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