Obtaining an occupation order can be confusing and overwhelming. However, it doesn’t have to be. As a matter of fact, this comprehensive guide will take you through everything you need to know. With this in mind, this includes:
- The mandatory and discretionary tests
- The evidence required
- The success rate of occupation orders
Moreover, we’ll also explain how hard it is to get an occupation order. Furthermore, we’ll also discuss Chalmers v Johns [1999] 1 FLR 392. In addition, we’ll discuss the precedent for the court’s consideration, the balance of harm test, and its discretionary power. This guide gives you all the information you need to plan how to win an occupation order.
1. What is an Occupation Order?
An occupation order is a legal remedy you can seek if you’re experiencing issues concerning the occupation of your property. Moreover, this includes squatters, tenants, or even family members who refuse to leave.
Usually, an occupation order can be used in a variety of situations. These include:
- Landlords seeking to regain possession of their property from tenants who’ve refused to vacate
- Homeowners seeking to regain possession of their property from squatters
- Family members seeking to regain possession of a property from a relative who refuses to leave
In addition, two types of occupation orders can be sought in the United Kingdom. These include:
Interim occupation orders
These are temporary orders that can be sought in emergency situations. Typically, these are used when an individual faces an immediate threat of harm or damage to their property.
Final occupation orders
These permanent orders can be sought once the situation has been resolved. Typically, these are used when an individual has successfully regained possession of their property. Additionally, this also includes if they want to ensure that the unwanted occupants do not return.
2. How Does an Occupation Order Take Place?
To get an occupation order, understand the mandatory and discretionary test of the Family Law Act 1996.
The Mandatory Test Under S33(7)
The mandatory test under s33(7) of the Family Law Act 1996 requires the court to consider whether it’s necessary to make an occupation order to protect yourself from violence or the threat of violence.
In addition, the court makes an order if it’s satisfied that the criteria are met. Moreover, this test is considered mandatory.
The Discretionary Test Under S33(6)
The discretionary test under the Family Law Act 1996 allows the court to make an order if it considers it convenient.
To clarify, this test is considered discretionary because the court has the power to decide whether or not to make an order. Furthermore, they decide this even if the criteria are met.
Chalmers v Johns [1999] 1 FLR 392
In the case of Chalmers v Johns [1999] 1 FLR 392, the court established that the harm test of the Family Law Act 1996 must be applied.
At the same time, this test requires the court to consider the harm. Then, they consider whether to grant an occupation order or not.
Set Out the Evidence
When making an application, arranging the evidence supporting your case is important. With this in mind, this includes any evidence of violence or harassment and any relevant medical or psychiatric evidence.
The Court’s Discretionary Power
The court has the discretionary authority to obtain an order under s33(6) of the Family Law Act 1996. On the positive side, they still have the authority even if the criteria of the mandatory test are not met.
On the other hand, the court can make an order for a limited period. Moreover, they can also impose conditions on orders. This includes restraining the respondent from entering the property or contacting the applicant.
3. How to Win an Occupation Order?
Winning an occupation order requires a thorough understanding of the legal process. In other words, the process begins by filing an application with the court. Usually, this application should include the following:
- All relevant information regarding the situation
- The names of the parties involved
- The nature of the dispute
- Any evidence supporting the individual’s claim
Once the application has been filed, the court will schedule a hearing. During this hearing, the parties involved will have the opportunity to present their case and evidence. Then, the court will make a decision based on the information presented.
For the most part, you better learn the strategies on how to win an occupation order from KQ Solicitors.
To increase the chances of winning, prepare a strong case and be well-prepared for the hearing. Particularly, this includes having a clear understanding of the legal process.
Factors that influence winning an occupation order
| Factors | Description |
| Evidence | Having strong evidence that supports your claim |
| Preparation | Being well-prepared for the hearing |
| Legal knowledge | Understanding of the legal process and the law |
| Representation | Having legal representation during the hearing |
Additionally, some other factors that can influence winning an occupation order include:
- Having a strong legal argument
- Being able to prove that the individual has a legal right to the property
- Prove that the unwanted occupants are causing harm or damage to the property
4. Occupation Order Success Rate
Significantly, the success rate of occupation orders varies depending on the case’s specific circumstances. In general, it’s estimated that around 70–80% of occupation order applications are successful.
Occupation And Non-Molestation Orders Statistics as Per Family Court 2021
The number of orders for each category is calculated based on the total number of orders made (9,804) and the percentage of each order type (94% for non-molestation and 6% for Occupation).
| Order Type | July-September 2022 | Change from 2021 | Number of orders |
| Non-molestation | 94% | 1% increase | 9,304 |
| Occupation | 6% | 1% decrease | 500 |
However, note that this success rate can be affected by several factors. Explicitly, these include:
- The strength of the individual’s case
- The quality of the evidence presented
- The qualifications and experience of the judge hearing the case
Factors that influence the success rate of an occupation order
| Factors | Description |
| Strength of case | The strength and validity of the individual’s legal argument and evidence |
| Quality of evidence | The relevance and credibility of the evidence presented |
| Qualifications and experience of the judge | The judge’s understanding of the law and the legal process |
Additionally, some other factors that can influence the success rate of an occupation order include:
- The urgency of the situation
- Whether the unwanted occupants are willing to vacate the property voluntarily
- The willingness of the court to grant the order
5. How Hard Is It to Get an Occupation Order?
Generally, obtaining an occupation order can be a difficult and complex process. This is because it requires a thorough understanding of the legal process. Additionally, the process can be time-consuming, as it involves multiple court appearances and hearings.
However, note that it’s not impossible to obtain an occupation order. With the right knowledge, preparation, and representation, one can successfully regain possession of one’s property.
| Factors | Difficulty Level | Explanation | Examples |
| Evidence | High | Strong evidence is needed to prove that the respondent has engaged in domestic abuse or harassment. | Police reports, medical records, witness statements, and other forms of physical and documentary evidence. |
| Timing | Medium | The sooner the application is made, the more likely it is to be successful, but it can be difficult to obtain an order if the respondent is not currently in the property. | Applying for an order as soon as possible after an incident of abuse or harassment versus waiting until the respondent has left the property. |
| Respondent’s Cooperation | Low | Cooperation from the respondent can make obtaining an order much easier, but it is often not the case. | Respondent agrees to vacate the property voluntarily versus actively fighting the order in court. |
| Legal Representation | Medium | Having a solicitor can increase the chances of success, but it can also be costly. | Representing oneself in court versus hiring a solicitor. |
Some additional factors that can make it difficult to obtain an occupation order include the following:
- The unwanted occupants are unwilling to vacate the property voluntarily
- You don’t have a clear legal right to the property
- You can’t prove that the unwanted occupants are causing harm or damage to the property
FAQs
Q: What is an Occupation Order?
A: An Occupation Order is a legal document issued by the court that grants permission for a particular person to occupy or use the premises specified in the order.
Q: Who can apply for an Occupation Order?
A: A landlord, tenant or other person interested in the property can apply for an Occupation Order.
Q: What rights does an Occupation Order grant?
A3: An Occupation Orders grants the person named in it exclusive possession of the premises for a while as ordered by the court.
Q: How long does an Occupation Order last?
A: The length of an Occupation Order varies depending on the case, but it generally lasts until a specified date or until a further court order is made.
Q: What happens if someone breaches an Occupation Order?
A: If someone breaches an Occupation Order, the court can impose sanctions, including fines, imprisonment or both.
Conclusion – How to Win an Occupation Order?
In conclusion, it’s a legal remedy that can be sought by individuals facing issues with the occupation of their property. Not to mention, try to have a strong case, proper evidence, representation, and a clear understanding of the legal process. Ultimately, this will increase the chances of winning an occupation order.
Correspondingly, the success rate of occupation orders varies. Equally important, this depends on the specific circumstances of the case. However, the rough estimate of the success rate is 70–80%.
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