There are several different kinds of housing association tenancy. The information in this section mainly covers the most common kind of housing association tenancies, which are assured and assured shorthold tenancies.
Some housing association tenants will have secure tenancies because their tenancy began with the housing association before 15th January 1989. If you are a secure tenant the information about council tenants with rent arrears will be relevant to your tenancy.
Tenancy law is complicated so it is essential to get advice about what type of tenancy you have before the court hearing. Tenancy agreements can contain mistakes and can sometimes be misleading, so it is important to get an agreement checked rather than simply accepting what it says.
Steps housing association landlords should take before going to court
Housing associations are often called social landlords and there are some special rules they must follow before taking court action for rent arrears.
These rules were made to make sure that you are treated fairly and that you are only taken to court as a last resort. In some cases if the rules have been broken the court can dismiss the claim and make the landlord liable for all the court costs.
The rules about social landlords and court proceedings for rent arrears are in a document called ‘Pre-action Protocol for Possession Claims by Social Landlords’.
The protocol is available on the Government’s website at: Pre-Action Protocol for Possession Claims by Social Landlords (justice.gov.uk)
The protocol outlines how social landlords should:
- try to make contact with tenants before taking court action
- try to agree how the arrears can be repaid at an affordable amount
- provide clear rent statements
- arrange for arrears to be paid by DWP deductions from benefits
- offer to help with any housing benefit or universal credit (housing element) claim.
It can also cover a situation where rent arrears are due to delays in the payment of benefit towards rent. Paragraph 2.6 of the Protocol tells social landlords that they should not start court proceedings if a tenant has made a housing benefit claim, so long as;
- the tenant has provided all the information needed to process the claim;
- it is likely that the tenant will qualify for housing benefit or universal credit (housing element) ; and
- the tenant has paid other amounts not covered by housing benefit or universal credit (housing element) .
Rent arrears possession grounds for assured and assured shorthold tenancies
This section covers assured and assured shorthold tenancies so it does not apply to tenants whose landlord is the council or to those tenants who have had their tenancy with a housing association since before 15th January 1989.
If you have an assured tenancy or an assured shorthold tenancy your landlord has a choice of possession grounds that can be used for rent arrears.
The grounds are numbered and the landlord has to state on the front of the ‘Notice Seeking Possession’, which grounds the court is being asked to look at. You should have received a Notice Seeking Possession (NSP) before your landlord applied to the court.
The three rent arrears grounds that are available to landlords of assured and assured shorthold tenancies are as follows:
- Ground 8: 8 weeks or 2 months worth of rent arrears
- Ground 10: Any amount of rent arrears
- Ground 11: Persistent delays in payment of rent
A landlord can use all three grounds at once but some grounds are more serious than others – Your home is most at risk if Ground 8 is being used.
About Ground 8
Ground 8 is the most serious ground because if the landlord proves that this ground applies to your rent arrears the court has to make an outright possession order. Click here for information about outright possession orders.
A landlord can only use Ground 8 if it is stated on the Notice Seeking Possession and if your total arrears are equal or more than eight weeks if your rent is due weekly, or two months if your rent is due monthly. (The arrears are calculated differently if your rent is due quarterly or yearly – seek advice if this is the case.)
For this ground to apply, your arrears have to be at least eight weeks or two months at the time the notice is served and at the time of the court hearing.
If you are able to get your rent arrears to below eight weeks or two months before the court hearing your landlord will not be able to use Ground 8 and this may be enough to save your home, whereas if your arrears are eight weeks or two months when the notice is served and at the time of the hearing you are likely to lose your home.
If Ground 8 cannot be used because you reduce the arrears by enough before the hearing the landlord can ask the court to look at grounds 10 or 11. However, with grounds 10 and 11, the court does not have to make an outright possession order – it can listen to your explanation for the arrears and to any offer you are able to make before making a decision.
About Grounds 10 and 11
With Grounds 10 and 11, if the court decides not to make an outright possession order, it could make a suspended possession order, or postponed possession order, or it could decide on an adjournment, or decide not to make any order and dismiss the landlord’s claim. Click here for more information about these types of court orders.
Example of how Ground 8 works
|Mr and Mrs X have an assured tenancy with a rent of £100 per week and their rent arrears are increasing each week. When their arrears reach £1,000 their landlord serves a Notice Seeking Possession asking the Court to agree to their eviction on grounds 8, 10 and 11.
By the time the court hearing takes place Mr and Mrs X have managed to reduce their arrears to £750. Because £750 is less than 8 weeks worth of arrears, which is £800, the landlord cannot use ground 8, which means when the court looks at grounds 10 and 11 it can listen to and possibly agree to any offer that Mr and Mrs X are able to make to clear the rest of the arrears.
If Mr and Mrs X are unable to reduce their arrears to below £800 before the court hearing they will lose their home because the court will have no alternative but to make an outright possession order under Ground 8.
£100 x 8 = £800
(ie £100 per week rent x 8 weeks = £800 worth of rent arrears – So long as the arrears remain below £800 Ground 8 cannot be used)
If your home is in disrepair
If your landlord has not carried out repairs that are a landlord’s responsibility you may be able to use this as a defence in court if a rent arrears possession ground is being used.
Sometimes the court can offset rent arrears against damages a tenant could claim for a landlord’s failure to carry out repairs. To use this defence you must have told the landlord about the disrepair.
This type of defence is called a ‘disrepair counterclaim’ and it is important to get advice as soon as possible because the process is complicated and you may need an expert’s opinion about the seriousness of the disrepair. If you did not realise that you could use the disrepair issue until quite late on it is still worth telling the Judge because the court could give you time to get advice and evidence.
Breathing Space under the Debt Respite Scheme
A landlord can be temporarily prevented from obtaining or enforcing a court order if a defendant with rent arrears has obtained ‘breathing space’ under the Debt Respite Scheme.
Under the breathing space scheme creditors, including landlords, are prevented from taking action for a fixed amount of time. This period is called ‘breathing space’, ‘respite’ or ‘moratorium’ and it means legal action has been paused so that the person has more time to get help with their debt problems.
The standard breathing space period is 60 days and an application must be made on behalf of the person in debt by a regulated debt adviser.
If the person in debt has a mental health crisis there is no fixed time limit on the amount of breathing space but respite normally ends 30 days after crisis treatment ends. Evidence from an approved mental health professional (AMHP) is required to obtain breathing space under these rules.
For details about how to obtain breathing space see this link: Breathing Space. Debt Respite Scheme Advice. StepChange)
Click here for more information about debt advice
If your landlord is using the assured shorthold possession ground (Section 21 Notices)
If you have an Assured Shorthold Tenancy your landlord could decide to use the assured shorthold possession ground rather than using a rent arrears ground. These are sometimes called section 21 possession proceedings because they come under section 21 of the Housing Act 1988. Some landlords use these proceedings because they decide this is the best way of getting the court to agree to an eviction.
Your landlord will not be able to use the assured shorthold possession ground if you have an assured tenancy rather than an assured shorthold tenancy. Many housing association tenants have assured tenancies rather than assured shorthold tenancies but lots of housing associations use assured shorthold tenancies as ‘starter tenancies’. You will need to check what kind of tenancy you have.
The assured shorthold possession ground guarantees the landlord the right to get the property back after an assured shorthold tenancy has existed for at least six months (some tenancy agreements will give a tenant longer than six months before the assured shorthold possession ground can be used so it is important to get your agreement checked).
Although assured shorthold tenancies are designed to let a landlord evict a tenant after the minimum six months if they want to, the landlord must follow the correct legal procedure, otherwise the court will not agree to the eviction.
The eviction can be stopped if your landlord has not given you the correct notice to end your tenancy or if the notice is invalidated for some other legal reason.
Checking that the correct ‘Section 21 Notice’ has been given
A notice seeking possession to end an assured shorthold tenancy is often called a ‘Section 21 Notice’ because it comes under section 21 of the Housing Act 1988. The official form the section 21 notice is served on is Form 6A and it is called a ‘Notice seeking possession of a property let on an Assured Shorthold Tenancy’
It is important to get it the Notice checked because any mistakes could work in your favour. Here are the main things that need to be checked on a section 21 notice served by a housing association:
- For tenancies beginning on or after 1st October 2015 (or being renewed after this date), the notice must be served in the prescribed form, which means it must contain the same information as Form 6A. The form has been updated several times and the current version can be found on the Government’s Website: (Assured tenancy forms – GOV.UK (www.gov.uk)), along with other assured tenancy forms. (Seek specialist advice about the required contents of a section 21 notice if your tenancy began before 01.10.15 – it will depend on whether your tenancy had a fixed term and when the notice was served)
- You should be given the correct minimum notice period, which is not less than 2 months. The notice period is the length of time between the date the notice was served on you and the date you are told to leave by. (During the Coronavirus pandemic the minimum notice period was extended on three occasions but the 2-month period was reinstated on 1st October 2021. Covid-19 extended notice periods applied from 26.03.20 until 01.10. Depending on when the section 21 notice was served, the minimum notice period had to be 3, 6, or 4 months. Seek specialist advice if you were served with a section 21 notice on or after 26.03.20 and before 01.10.21.)
- The notice must not be served too early. A section 21 notice cannot be served during the first 4 months of a tenancy.
- The notice must not tell you to leave before your tenancy is 6 months old and can only take effect during a fixed term if the tenancy agreement allows for this with a valid break clause.
- There is a 6-month time limit within which a landlord must act, otherwise the section 21 notice can no longer be used. The time limit can be calculated by counting the number of months that have passed between the notice being served and the date on which the landlord started possession proceedings by applying to the court. (Time limits were extended on two occasions during the Coronavirus pandemic but notices served during this period are likely to have expired by now unless your landlord applied to the court early enough. If your landlord served a section 21 notice between 29.08.20 and 30.09.21 it will most likely have expired by now unless an application was made to the court by 29.05.22 and much earlier in most cases. Seek specialist advice if you received your section 21 notice during this period.)
Accelerated possession proceedings
With the assured shorthold possession ground landlords can try to speed up the process by using the accelerated or fast track possession procedure. The accelerated procedure is only available to landlords using the section 21 assured shorthold possession ground.
This procedure does not change the type of notice the landlord has to give to you but it means the Court can make a faster decision by not having a hearing. However, the District Judge can still decide to have a hearing if it looks like you have a defence, or if there is something that needs to be looked at.
If your landlord is using the accelerated procedure this will be stated on the top the landlord’s claim form that the court will send to you (form N5B). If you do not complete and return the defence form you receive with the landlord’s claim form there will only be a hearing if the Judge decides there needs to be a hearing after looking at all the paperwork.
If you want to try to stay in your home, or if you need extra time to find somewhere else to live, it is advisable to get help with returning the defence form.
If you have a defence such as not having been given proper notice returning the defence from with details of this could result in a hearing that stops the eviction.
Even if you do not have a defence you can still use the defence form to ask for extra time and this could result in a longer outright possession order. (Click here for details about possession orders.) For example you could be given six weeks to leave rather than two weeks.