Private sector tenants with rent arrears – helpful rules

This page covers assured and assured shorthold tenancies in the private rented sector, so it does not apply to tenants whose landlord is the council or a housing association.

Also, it does not apply if your tenancy began before 15th January 1989 (ie you have a protected or regulated tenancy) or if you have another kind of private sector tenancy besides an assured or assured shorthold tenancy.

Tenancy law is complicated so it is important 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.

Rent arrears possession grounds for assured and assured shorthold tenancies

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.

Calculation

£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 possession proceedings)

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 do this because they decide this is the best way of getting the court to agree to an eviction.

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 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 private landlord:

  • 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. 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.  Before the Coronavirus the notice period had to be not less than 2 months but this has been extended twice due to Covid-19.  The minimum notice period will now depend on when the notice was served:

    – Not less than 2 months’ notice if served before 26.03.20

    – Not less than 3 months’ notice if served after 26.03.20 and before 29.08.20

    – Not less than 6 months’ notice if served on or after 29.08.20
  • 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 time limit within which a landlord must act, otherwise the section 21 notice can no longer be used. This time limit will depend on the date on which the section 21 notice was served and it 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.  The time limit has been increased to 10 months in response to Covid-19 so that it is 6 months or 10 months depending on when the notice was served:

    – 6-month time limit if section 21 notice served before 29th August 2020

    – 10 month time limit if section 21 notice served on or after 29th August 2020

Checking whether the section 21 notice is invalidated because the landlord has not complied with the law

A private sector landlord cannot use a section 21 notice if they have failed to carry out certain legal requirements:

  • Your landlord has taken a deposit but failed to protect it in one of the Government recognised schemes or has failed to provide the required paperwork about the scheme. More information about tenancy deposit protection can be found on the Government’s website: Tenancy deposit protection – GOV.UK (www.gov.uk).
  • You live in a House of Multiple Occupation (HMO) and your landlord has failed to comply with the licensing conditions by registering your HMO with your local council.  An HMO must be licensed if it is a property occupied by five or more people in two or more separate households. More information can be obtained from your local district or borough council and can be found on the Government’s website: House in multiple occupation licence – GOV.UK (www.gov.uk)
  • Your landlord is trying to evict you as an act of revenge because you have reported a problem with disrepair.  These are known as “retaliatory evictions” and can only be used as a defence if you have followed certain procedures and reported the repair issue with your home to your local council. More information can be obtained from your local district or borough council and can be found on the Government’s website: Retaliatory Eviction and the Deregulation Act 2015: guidance note – GOV.UK (www.gov.uk)
  • Your landlord failed to provide you with a gas safety certificate and energy performance certificate at the start of your tenancy.  This is known as a “failure to meet prescribed requirements”.
  • Your landlord failed to provide you with the “How to Rent Guide” at the start of the tenancy.  This is known as a “failure to provide prescribed information” and the rule applies if your tenancy began on or after 1st October 2015.  More information can be found on the Government’s website, including the most up to date version of the booklet: How to rent – GOV.UK (www.gov.uk)
  • Your landlord has taken a payment from you that they shouldn’t have and has failed to return it.  These are known as a ‘prohibited payments’, which include charges for renewing a tenancy , credit checks, inventories and guarantor forms. The relevant law is called the “Tenant Fees Act” and more information can found on the Government’s website: Tenant Fees Act – GOV.UK (www.gov.uk)

A landlord using section 21 possession proceedings will be required to tell the court that all the above rules have been followed.  This will include providing details on the relevant court forms.  For example, at numbers 11b to 13 on court form N5B the landlord has to explain what has been done with any deposit that has been taken and at numbers 17 to 17c provide details about the gas safety certificate.  If you have received this form from the court it is a good idea to check the landlord’s answers to see whether you agree with them.

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

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