Forthwith Possession – How soon is now?
6th April 2022
In Axnoller Events Ltd v Brake [2022] EWHC 459 (Ch) the High Court considered the date on which possession of a property must be given after the termination of a bare licence.
The Claimant sought a forthwith possession order (i.e. leave now), however the Defendant argued that further time should be given due to a number of factors including availability of alternative accommodation and the length of time they had lived at the property (i.e. factors a Court may consider when looking exceptional hardship, per s89 Housing Act 1980).
On 22nd February 2022 the Defendant was ordered to give up possession of the property forthwith.
In this case, the Defendant was not originally a trespasser, they had been in occupation with the Claimant’s permission (the bare licence). A forthwith possession order is the normal order in a trespass possession claim against a trespasser.
The Defendant had however remained on the land without the permission of the Claimant, and there was no express statutory provision telling the Court that they can or must give more than a forthwith possession order. In the case of s89 HA 1980 discretion, this arises in cases where the Court already has the power to make a possession order taking effect later than “forthwith”.
In Axnoller the Defendant applied for a stay, but this was dismissed by the Court, who stated that the burden of proof was on the Defendant and they had failed to show why any stay should be granted.
It is therefore correct for a forthwith possession order to be made in a trespass claim where the Defendant never had any legal right to be on the land / at the property, or has remained on the land / at the property after being served with a correct Notice to Quit.
Forthwith means immediately, so a request for a warrant of possession can be made straight away in order to seek a bailiff appointment.
So, how soon is now?…now, immediately, straight away!
If you need advice relating to and of the issues mentioned here, please contact our expert team.
Phillip Coburn
Phillip is a highly experienced Solicitor with varied specialisms in housing, public law and civil litigation. Phillip has a robust knowledge of both social and private housing and is able to advise Local Authorities, Social Landlords and Private Landlords on a multitude of contentious and non-contentious matters.
