Hi,

I have just returned home to discover a letter from 'Central London county Court' which states that an 'order has been made on discretionary grounds and the court orders that: The defendant give the claimant possession of

Are you in arrears with your mortgage ?

Thanks for the reply. No, I don't have a mortgage. My flat is rented.

If it's real it will have a case number on it. Phone the court on Monday, quote the case number, and ask.

Is the claimant's name your landlord's name, and are you named as the defendant? Or is your LL named as the defendant and there is someone else named as the claimant?

There is a 'Claim No.' at the top, 'Claimant' is indeed listed as my landlord and I am listed as the 'Defendant'.

But if it is genuine, how can this order have been issued without any previous correspondence? I am not in arrears with my rent and have a 2-year contract (this is only month 4).

It is always odd when people say that they haven't received any kind of notification at all. In order to get an order for possession your LL would have had to produced documents in court, tenancy agreement, notice to quit (s21 or s8) and provided evidence to support his claim for possession, particularly as you state that you have no arrears of rent and are in the fixed term of a contract (all ASTs are protected by statute for 6 months, irrespective of break clauses). To not receive ANY of the documentation that would have been sent, either by your LL or the duplicates sent out directly by the court, is odd (especially because the judgment clearly arrived).

Contact the court on Monday (you'll probably be better off going in) and make an application to have the order set aside on the basis that you a) did not receive a notice from the LL regarding the tenancy agreement, b) you have a 2 year tenancy and remain inside the 6 month statutory protected period and c) you have received no correspondence from the court or from your LL in relation to the court hearing and were only aware of it when receiving the judgment.

The order was granted on discretionary grounds according to your first post, so if judgment were set aside and a new hearing granted, then you'd have a chance to defend possession.

Oh...and to be granted a forthwith order is fairly unusual - judges are reluctant to grant them unless there are compelling reasons. As you claim there are no arrears, perhaps you have committed some other breach of the tenancy agreement?

Most odd indeed. My landlord is an offshore company and I have received no correspondence nor communication from them - full stop - since the day I signed the tenancy.

All rental payments have been made to the letting agent by Standing Order - as was specified at the time of the tenancy.

First thing on Monday I will telephone the court to confirm that this document is indeed genuine. If it is, then there has clearly been an error of some sort.

Also, other than single piece of paper - the 'Order of Possession - there were no other documents in the envelope.

Is that normal?

Yes, that's normal. What you received was the judgment.

I suspect that the letting agent hasn't passed over the money to the LL. I presume you have kept all receipts or have proof of your payments to them (bank statements with relevant account details for them)?

Once you find out further details on Monday you might wish to post back on the thread with that information and we can see where to go from there.

Site team - this thread should be moved to the Repossessions Forum.

Yes, my bank statements confirm the Standing Order being paid on the 20th of every month since the tenancy commenced. The letting agent is probably the largest and best known in London. But how on earth can I prove that the agent has failed to pass on my rental payments to the offshore company? Or do I simply need to prove that I have indeed paid each month, and then it will be for the agent and the landlord to resolve the issue of why my payments were not forwarded?

b) you have a 2 year tenancy and remain inside the 6 month statutory protected period

Can you please elaborate on the '6 month statutory protected period'?

The letting agent is the LL's agent, so paying rent to them is as good as paying it to the LL - the lack of it being paid over is between them, not you.

The judgment you received has your LL's name on it, not the letting agents I presume?

Is there a break clause in your tenancy agreement?

Irrespective of the length of a tenancy agreement, the law states that the first six months is protected, i.e. neither LL nor tenant can break the agreement during that period unless there is a breach of the tenancy - if rent isn't paid for example.

If you have a tenancy agreement for a term certain of two years, with no break clause, then unless you breach the tenancy, the property is yours for two years and the courts will not interfere with that.

The tenancy contains no break clause - only a provision for a modest (fixed) increase in the second year.

The judgment refers to my landlord - the company - as the 'Claimant' and to me as the 'Defendant'.

From what I have read this evening, I need to make a formal appeal to the court on a Form 'N244'. Is that all I need to do at this point?

Right, so the claim is obviously correct in terms of who the defendant/claimant are, but of course whether the claim itself is correct is debatable. My suggestion would be that you ask the court for a copy of the claim form and the particulars of claim, as seeing those would go some way to ascertaining the grounds for the claim - and the evidence relied on.

Yes, you need to apply to set aside the order on N244. This must be done within 14 days of the judgment. The court will only grant the set aside if the following apply:

The applicant must have:

1. Acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

2. Had a good reason for not attending the trial; and

3. Has a reasonable prospect of success at the trial.

Oh, and it's not an appeal, it's a set aside application. An appeal would only follow a trial, possessions are normally done at hearings. It's a material difference in law.

Thank you. The form seems straightforward enough so I will submit it in person to the court.

As far as points 1., 2. and 3.

1. The Order was made on 07 May according to the letter, but I only actually received the letter today. Either way, I assume that will count as having 'acted promptly'?

2. I don't know if not knowing there was a trial counts as a 'good reason' for not having attended?

3. The only point of certainty is that I know my defence has a 100% prospect of success.

Having submitted the form to the court, is there a usual waiting time for a response?

Also, will a new trial date be given at which I can then attend and present my proof/evidence?

1. Putting in your application on Monday would be deemed to be acting promptly.

2. There almost certainly wasn't a trial, as I said, possessions are usually done at hearings, not trials - so your point would be that you have grounds to set aside as there was no trial, it was a hearing.

3. Well, you don't know that to be truthful, do you? We can assume on the basis of the info you've given here that you'll be successful, but that is without benefit of seeing the claim, hence me suggesting you ask the court for a copy of the claim and the PoC.

If you file your paperwork in person, the court office will normally be able to give you a hearing date immediately - or will send it out to you very quickly. It has to be heard within 14 days of the judgment, so they will act quickly.

It's not a trial, it's a hearing to set aside the PO. You will need to attend (of course, since it's your application), and you will need to provide your evidence, however, you should provide sufficient evidence with your application to prove the PO should not have been granted otherwise you may not get a hearing. That information will also be sent to your LL.

Having read further, something else is of great concern:

As the order was granted 'FORTHWITH', I'm assuming that the landlord could have instructed bailiffs immediately?

How do I know if this is the case or not? Also, does the hearing to set aside the PO have any bearing on this?

Moreover, I have also read about the Court of Appeal ruling in the case of Forcelux Limited v Binnie [2009] EWCA Civ 854. I assume that is the reference for your points 1, 2 and 3 above?

Yes, that's correct. The bailiffs could have been instructed on the same day - however, most court bailiffs are extremely busy, so it'll be a couple of weeks before they can fit the eviction date in, and in any case, you will almost certainly receive a Notice of Eviction giving you the time and date to leave, with at least 7 days notice. I doubt it would arrive before mid-May at the earliest, but you MUST put your set aside application in as soon as you can on Monday morning as that will halt all enforcement action.

Re case law, no, that case is the reference for the difference between trial and hearing in a possession case. Don't try to use case law in your application to set aside, LIPs often do that and almost always get it wrong. The points I gave are from the CPR.

Just make your application to set aside based upon the facts as you believe them to be.

I think I made reference to them in an earlier post, #6. There's no point in trying to get too clever about it, it's a VERY simple process - find out what the PoC says and then provide your proof to disprove the LL's claim.

Post back on Monday when you have the claim form and the PoC.

Very interesting, thank you.

I propose to state the following in my N244 application:

1. I did not receive a notice from my landlord or from the landlord's representative regarding the tenancy agreement.

Well, here we have a problem, because the LL is entitled to serve papers on the actual address, he is not obliged to serve them elsewhere unless you put him on notice to do such at the outset of the tenancy. Does the LL know your wife and child are living in the property? Was your wife named on the tenancy agreement? Is there a clause disallowing children? Are you certain your wife did not receive the paperwork?

The important information you missed was a) telling me that you did not live at the property and b) not telling me that your wife and child lived there.

Yes, both the letting agent and the landlord are aware that my wife and child are living in the property as it was rented for that specific purpose.

You do raise one interesting point however: my wife is not named on the tenancy agreement. I did not request that she be named and the landlord did not ask that she be named on the tenancy agreement.

I collect all my post bi-weekly when I am in the UK and have done for many months. There has been no correspondence from the letting agent, the landlord or indeed from anyone else.

Moreover, both the landlord and the letting agent have my contact numbers and email address. No communication in any form has been made since the signing of the tenancy.

That said, I'm unsure how this changes the fact that I am the named tenant, that I have paid all rental monies due under the tenancy agreement and that the Order for Possession names me as the defendant?

It changes things because the reason for possession may be any number of other breaches of the tenancy agreement, and clearly perhaps, one that you may not be aware of or that your wife hasn't shared with you. It doesn't change that you are appropriately named on the judgment as the defendant, or that you have proof you have paid monies due. The issue here may not be rent arrears.

Could she have disposed of any letters arriving that were addressed to 'the occupier'?

My suggestion would be that you go to the court tomorrow and obtain copies of the claim form and the particulars of claim (it is essential you have BOTH), and then post back so that more specific advice can be given in relation to the actual claim that was against you.

A one day delay in making your set aside application should not cause too many difficulties and it's better that you know what the claim against you is.

I have finally managed to speak to the court, and the landlord is claiming not to have received ANY rent since the day I moved in!

The order has therefore been made for immediate possession and rent arrears. Moreover, a warrant for possession was issued already.

The court clerk said that was very unusual and most likely due to the fact that I had not been present at the hearing. He also told me to complete and submit an N244 first thing tomorrow morning.

I really can't believe this is happening. Can anyone please give me some guidance as to how best to complete the N244 form?

Section 10 seems confusing: am I relying on the statement of case, or the evidence set out in the box below (my evidence is several pages of statements, etc).