Non-Payment of Rent: Your Rights.

The consequences and time scales.
The first thing is to work out what kind of tenant you are, as there are different rules for different groups. Are you: a secure tenant, an assured tenant, an assured shorthold tenant, licencee, unlawful occupier etc.

The first thing is to work out what kind of tenant you are, as there are different rules for different groups. Are you: a secure tenant, an assured tenant, an assured shorthold tenant, licencee, unlawful occupier etc

What kind of occupier you are depends on who your landlord is and what agreement you have made. What is said in any written or oral agreement is important but it is not always correct. What kind of occupier you are also depends on the facts – you might be a tenant even if your landlord has written something else in the agreement.

Council tenants

Council tenants will usually be “secure tenants”. New tenants could be “introductory tenants”. Tenants who have had problems with allegations of anti -social behaviour might have “demoted tenancies” or “family intervention tenancies”. People placed in temporary accommodation by the council will usually have some kind of “licence” or possibly an “assured shorthold tenancy”. Because the rules are complicated, we are only looking at the majority of tenancies which are “secure tenancies”.

Secure tenants can only be evicted on one of the grounds set out in Housing Act 1985 Schedule 1

The most common grounds are

  • Rent arrears
  • Nuisance
  • Some other breach of tenancy

There are also various housing management type grounds e,g, where major repairs required etc but alternative accommodation has to be offered. here though, we are only looking at rent arrears. All grounds for eviction against secure tenants are ‘discretionary’ which means as well as considering whether the ground is proved, the court will also consider whether it is reasonable to make a possession order.

If someone has sublet the whole of their property or stopped living in it as their only or principal home they are no longer a secure tenant and a different process applies. There are different procedures for introductory and demoted tenants and tenants in temporary accommodation. These people are in a much less secure position and it is much easier for the council to evict them.

Taking possession against secure tenants in rent arrears

Warning letters

Generally (although not always) local authorities will write one or two “warning letters”. This can be anywhere between 2 weeks to a year aft er arrears occurs depending on the efficiency of the local authority. Generally council’s are more clued up now so warning letters will generally arrive within 2 months of the start of any arrears/non payment of rent.

Notice seeking possession

If non-payment/arrears continues a local authority will then give you something called a ‘notice of seeking possession’, giving details of the rent arrears and a date not less than 4 weeks ahead after which a “claim for possession” may be issued with the court.

Claim for possession

Once the date in the notice has passed, and if arrears have not be paid off , or an agreement made, a council can issue the claim for possession at court. It will be listed for hearing (usually about 2-4 weeks later depending on the court).

At the hearing the council will have to prove:

- The tent has not been paid, and

- It is reasonable for a possession order to be made

Reasonableness is very broad and includes things like the amount of arrears, the reason for the arrears, past payment history, housing benefit problems, commitment to paying in future and personal circumstances.

If the court decides it is reasonable to make a possession order, it will then decide whether to postpone or suspend the possession date.

A suspended possession order contains a possession date but says that it is not to be enforced so long as the rent and arrears are paid by installments. If the tenant pays a day late or a penny too little on a suspended possession order, the landlord can ask the court to issue a possession warrant. An outright order contains a possession date (the date a tenant has to leave the property), usually 28 days later, but could be less or more depending on the circumstances. If the tenant doesn’t leave by then, the landlord can ask the court to issue an eviction warrant.

Eviction

Notice of eviction is usually sent to the property and will contain a date saying when the bailiff s will come. If the tenant has not left , the bailiff s can remove them by force.

How long it takes from the landlord asking for a warrant to the bailiff s coming depends on the court but it is usually 2-4 weeks.

Application to stay

The tenant can make an application to “stay” the eviction (suspend the warrant) at any time up to the time it is executed. This is done on form N244 and there is a fee of £40 (people on income support, income related ESA and income based JSA and some people on low incomes don’t have to pay but will have to take up to date proof of income to the court – if they don’t have the right proof they can pay the fee and claim it back later on

producing the proof) Court offices are opening fewer and fewer hours per day but will usually accept applications any time that the court is open if it is urgent.

Applications will usually be listed for hearing within a day or two depending on when the eviction is. Often hearings will take place on the morning of the eviction with the bailiffs on hold. If the application is dismissed, the bailiffs are released and the eviction goes ahead immediately. The factors the judge will consider in deciding on a stay application are similar to reasonableness – essentially, why are you in arrears, what have you done to sort it out and are things going to be different in future.

Housing Association (HA) tenants

HA tenants are usually “assured tenants”. Some housing associati ons use assured shorthold tenancies as a kind of probationary tenancy for the first year.

The process for assured tenants is the same as for secure tenants except the “grounds” are slightly difference (see Housing Act 1988 schedule 2) Some of the “grounds” for possession give judges a discretion to seek possession or not, however the key difference is that there is a ‘mandatory’ (ie judges have no discretion) ground for a possession which is for rent arrears. This is something called “ground 8” (see appendix 1)

This means that the court has no power to consider the reason for the arrears, or the tenant’s circumstances or even if there are housing benefit problems. The only discretion comes where the tenant can dispute whether the notice was served properly or the level or rent arrears or raise some kind of public law or human rights

defence. Tenants facing a “ground 8” claim MUST get the arrears below 8 weeks (or 2 months) before the hearing, as the arrears have to be in place at (a) the time the landlord serves the court the papers AND (b) at the date of the hearing.

If a landlord only goes to court for a possession on “ground 8” and a tenants arrears are less than stated in appendix 1 before the court date, the landlord will fail.

So, landlords will oft en plead grounds 8, 10 and 11 at the same ti me to try and cover all bases (see appendix 1).

Private tenants

Generally private tenants will have either (1) an assured shorthold tenancy (ie the tenancy is fixed for a period of time on both landlord and tenant – generally 6 months or a year), or (2) a rolling tenancy (the period of the tenancy is not fixed). The above on assured tenants also applies to assured shorthold tenants (most private tenants where tenancy started after February 1997)

Accelerated possession proceedings

But, a landlord can use something called “the accelerated possession procedure”. Here no grounds for possession are needed (can’t be used during the first six months of the tenancy or during the fixed term if longer). The notice can be served during the fixed term but can’t expire before the end of it.

Step 1 – landlord gives tenant 2 months’ notice to leave (s21 notice)
- If tenant doesn’t leave when notice expires landlord will issue eviction proceedings with the court
- The tenant has 14 days to file defence
- The court has no discretion in these cases.
- The only defences are technical defences e.g. legal papers are not correct, tenancy details not correct, deposit not protected, landlord has not got required HMO licence.
- The Judge looks at papers and usually orders a possession without a hearing. Possession date is general about 14 days afterwards.
If there is a legitimate defence then a court date will be set.
- You can ask court to postpone the date for up to 6 weeks in cases of exceptional hardship – but “exceptional hardship really does need to be “exceptional”.

If you don’t have a defence it can be better not to try and “file” or serve a defence. If you do serve a defence the judge will make a decision – usually that you have to leave the property. If you don’t file a defence then nothing happens unless the landlord makes a written request to the court for the claim to be considered by a judge. Then the judge will tell you you have to leave the property, but you have probably bought yourself some extra time.

If you have a defence, tactically you may not want to make the landlord aware of it until as late as possible i.e. when you have to file the defence form. But, as the defence is just that some of the paperwork is incorrect, again all you are doing is buying yourself some time.
In most cases the landlord will simply get the paperwork right and then serve a new notice at the court. If a possession order is made a costs order will usually be made against the tenant – fixed costs if don’t defend but if do defend could be all of landlord’s legal costs.

Landlords can normally also claim for rent arrears to be paid by the tenant, but a landlord can’t claim for rent arrears in accelerated claim – they would instead have to bring a separate money claim (i.e debt claim), which very few actually do.

Evictions

Most people can’t be evicted without an order from the court. Exceptions include people sharing with the landlord and some people in hostels/B&B’s.

It is a civil and criminal offence for a landlord to:

Evict a protected occupier without a court order.

Harass a protected occupier especially with the intent to make them leave. Tenants can claim damages for harassment/illegal eviction and also injunction orders against re-letting and for reinstatement

Appendix 1

Ground 8

Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for

possession and at the date of the hearing

(a)if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;

(b)if rent is payable monthly, at least two months’ rent is unpaid;

(c)if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and

(d)if rent is payable yearly, at least three months’ rent is more than three months in arrears;

and for the purpose of this ground “rent” means rent lawfully due from the tenant.

Ground 10

Some rent lawfully due from the tenant—

(a)is unpaid on the date on which the proceedings for possession are begun; and

(b)except where subsection (1)(b) of section 8 of this Act applies, was in arrears at the date of the service of the notice under that section relating to those proceedings.

Ground 11

Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent which has become lawfully due.

What kind of occupier you are depends on who your landlord is and what agreement you have made. What is said in any writt en or oral agreement is important but it is not always correct. What kind of occupier you are also depends on the facts – you might be a tenant even if your landlord has written something else in the agreement.

Non payment of rent PDF VERSION

March 29, 2012  Tags: , ,   Posted in: INFORMATION