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 council 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 based on rent arrears’.
The protocol is available on the Government’s website at: Ministry of Justice – Pre-action Protocol
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 claim
It can also cover a situation where rent arrears are due to delays in payment of housing benefit. Paragraph 7 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; and
- the tenant has paid other amounts not covered by housing benefit.
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 the 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.
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 possession notice 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.
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 ground 10 or 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.
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. Some landlords do this 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 still has to 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. A notice to end an assured shorthold tenancy is called a ’Section 21 Notice’ because it comes under section 21 of the Housing Act 1988. These notices are sometimes also referred to as a ‘Notice Requiring Possession’.
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:
- It must not expire before your tenancy is 6 months old.
- The notice should give you at least 2 calendar months before you have to leave.
If your tenancy has never had a fixed term or if the Notice has been served after the fixed term has expired (ie the Notice is given to you after the end date on your fixed term tenancy has expired) it must meet the following additional requirements to be valid:
- It must state that the landlord requires possession under section 21 of the Housing Act 1988.
- It must expire on the last day of the period of the tenancy (for example if your tenancy began on the 5th of the month and your rent is monthly and due on the 5th of the month the Notice should expire on the 4th of the month).
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 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. 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.