RENT ARREARS - PRIVATE TENANTS

Landlords usually seek possession if there are rent arrears. They can, however, take a money action instead of, or in addition to, possession. The landlord can recover unpaid rent for up to six years.

General Note: It is important to have an overall picture of your financial circumstances, so that the rent arrears are not dealt with in isolation, otherwise you might commit yourself to payment arrangements you cannot honour.

Grounds for Possession

If the rent is 8 weeks in arrears (2 months for tenants who pay monthly) both at the time you receive the notice seeking possession and at the time of the hearing, that is a mandatory ground for possession: the judge has no choice but to evict you.

Therefore it may help your case to reduce the arrears to less than that before the court hearing, because rent arrears of a lesser amount, and persistent delay in paying rent, are only discretionary grounds for eviction. It gives the judge an option not to evict you, that he won't otherwise have.

However, note that for shorthold tenants the landlord can automatically apply for a court order to evict, and does not need any grounds for doing so, at the end of the fixed term or, if there is not one, after the tenancy has been in existence for six months.

Further details: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/116385-shorthold-tenancy-posession-eviction.html

Negotiating with the landlord over rent arrears

It may be possible to negotiate with the landlord, to try to prevent the landlord starting possession proceedings.

A landlord may wish to recover the arrears rather than terminate the tenancy. If so, it may be possible to reach an agreement about paying the arrears. Any agreement should be made or confirmed in writing.

Before entering into negotiations with the landlord, work out:

• how much rent you owe,

• whether you can maintain full rent payments regularly,

• whether the rent arrears can be reduced by an outstanding housing benefit payment, and

• what proposals can be made to pay off the arrears.

The scope for negotiation with the landlord depends upon:

• the amount of arrears

• whether the landlord is willing to negotiate

• how far the landlord has gone in taking action against you.

Registered social landlords (including housing associations) should follow certain procedures when trying to recover arrears, including negotiation.

If negotiation is possible, the time available for this will depend on the stage the landlord's action against you has reached. Act quickly, at the earliest possible moment, to maximise the time available for negotiations.

Are you responsible for the arrears?

If you are named in the tenancy agreement, you are responsible for paying the rent and any rent arrears.

Joint tenancies

If you are a joint tenant (i.e. one of several tenants), your responsibility for rent arrears will be shared with the other joint tenant(s). But as against the landlord, each tenant is responsible for the whole of the arrears, not just his share. This is known as "joint and several" liability.

If you are a joint tenant with rent arrears and the other tenant has left, the landlord can recover the whole of the arrears from you. In practice, the landlord is likely to treat the tenant remaining in the accommodation as liable for the whole amount.

Separate tenancy agreements

If you share accommodation with other people, but each of them has a separate agreement with the landlord, each tenant is only responsible for paying his own rent.

Arrears from a previous tenancy

Only arrears on the current property can be treated as rent arrears in a possession case in court. If you owe rent to the landlord for a previous tenancy, these must be recovered as a normal money debt in a seperate court action.

Are the rent arrears correct?

Step one: is the rent correct?

Find out exactly what is included in the rent you are paying. The rent may include water rates or service charges (for example for heating, lighting, or any other services provided by the landlord). You may have a written rent agreement or rent book which shows this, or may have agreed this verbally with the landlord.

If you are paying an inclusive rent and it is in arrears, all of the charges included in the rent will be treated as part of the rent arrears.

Step two: check any housing benefit and entitlement to any other benefits or tax credits

You may be entitled to housing benefit and other benefits, which could help you to reduce your rent arrears, as it may be possible to have benefits backdated. If you work, you may be entitled to working tax credit.

You can check the amount of housing benefit you MAY be entitled to at entitledto. This is a initial indication only. The rule of thumb is: if in doubt, apply.

The rent arrears may be due to a delay in the payment of housing benefit. If housing benefit is outstanding, or if there are problems deciding the amount you are entitled to, contact the housing benefit office of the local authority. Ask them to make an "interim payment" of housing benefit while your exact entitlement is being calculated.

Step three: has the amount of rent arrears been calculated correctly?

Check whether all rent payments that have been made have been recorded by the landlord, and that the amounts have been correctly added up.

If you are not clear about dates and amounts of payments (for example, because housing benefit is being paid direct to the landlord), or if you have no written records or receipts of payment, or if your rent book/card is incomplete or unclear, ask the landlord to provide details of the rent account.

Paying off the arrears

It is important that any agreement to repay the arrears is on terms you can afford and maintain.

If you are a shorthold tenant, repayment of arrears will not protect you from being evicted. The landlord does not need any grounds for evicting you: he can automatically get a court order to evict you at the end of the fixed term or, if there is not one, after six months. But he has to give you 2 months notice before any court action can be taken.

You need to consider whether you can pay your current rent in full before calculating how much extra you can pay toward the arrears. If you can't afford the current rent, the arrears can only increase.

If you receive income support, pension credit or income-based jobseeker's allowance, ask the Department for Work and Pensions to pay a fixed weekly sum direct to the landlord. This sum, deducted from your benefits to pay the arrears, is known as a third party deduction. But the landlord does not have to accept it, and can ask you to pay more toward the arrears.

If you receive income support, pension credit or income-based jobseeker's allowance, part of which is already being paid direct to the landlord to pay off the arrears, housing benefit must also be paid direct to the landlord.

Counterclaim for repairs

The accommodation may need repairs for which the landlord is responsible. If so, you could make a counterclaim ,to be set-off against the rent arrears. This can include compensation for loss or inconvenience you have suffered as a result of the disrepair.

Under Section 11 of the Landlord and Tenant Act 1985, which applies to Assured Shorthold Tenancies and Assured Tenancies, the following repairs are the landlord’s responsibility :

• To keep in repair the structure and exterior of the dwelling, including drains, gutters and external pipes;

• To keep in repair and proper working order the installations in the dwelling for the supply of water, gas, electricity and sanitation (including basins, sinks, baths, and sanitary conveniences); and

• To keep in repair and proper working order the installations in the dwelling for space heating and heating water.

Whether or not the tenancy agreement addresses those matters, section 11 of the Landlord and Tenant Act 1985 imposes those obligations on the landlord. If the tenancy agreement requires the tenant to undertake any of those obligations, that provision of the agreement is void.

Tenancy agreements usually state that the tenant should maintain the property in "a tenant-like manner", which means only that the tenant should not cause damage to the property.

If the tenancy agreement does not restrict the tenant's right to carry out internal improvements, then the tenant can redecorate without the landlord's permission.

There is also a specific procedure that a tenant can follow to do the repairs himself and deduct the cost from the rent or rent arrears. The correct procedure must be followed to avoid putting you at risk.

Shorthold tenants have limited security, therefore this option must be weighed against the possibility of the landlord ending the tenancy. You will need to consult a solicitor.

Tenant with rent arrears receives a notice seeking possession

If you receive a "notice seeking possession" (eviction notice) from the landlord, it is important to contact the landlord as soon as possible. After the notice period, the landlord can apply to court to have you evicted.

The notice the landlord gives you must state on which ground he is seeking possession. Ground 8, can be used if your rent is two months or more in arrears (three months or more for tenancies started before 28 February 1997): it is a mandatory ground for possession, which means the court has no choice - it must evict you if the ground is proved.

If you receive a notice seeking possession on ground 8 you should immediately consult a solicitor.

If you have received a notice seeking possession from the landlord, it may be possible to negotiate a repayment agreement, so that you can remain in the accommodation. This would also avoid going to court and an award of court costs against you.

You should continue to pay rent even after you have received a "notice seeking possession". If you can't (for example, because your claim for housing benefit has not been granted), write to the landlord and tell him that; and inform the local authority's housing benefit office of the eviction threat. Keep copies of all letters.

If the landlord refuses to accept rent after the notice has been given to you, put the money in a savings account, because you are liable for the rent during the notice period and up until you are evicted.

If an agreement to pay the arrears is agreed, it is important to keep to it. If you break the agreement, it will be very difficult to reopen negotiations with the landlord, who is likely to start possession proceedings. To reopen negotiations will probably require you to show that your situation has changed (for example, that you have claimed housing benefit which you were not previously aware you could claim).

Further details: http://www.consumeractiongroup.co.uk/forum/landlords-tenants/116385-shorthold-tenancy-posession-eviction.html

Note on Registered social landlords:

Registered social landlords (RSLs), including housing associations, should comply with guidance from the Housing Corporation not to use ground 8, but to use the discretionary grounds instead. If you are an RSL tenant and receive notice that the landlord is seeking possession on ground 8, consult a solicitor.

If the landlord is a social landlord, including a housing association, and is claiming possession solely on the basis of rent arrears, there are several steps it should have taken before issuing a notice seeking possession, including negotiation. These steps should be explained to you by your housing officer.

Tenant with rent arrears receives a court claim

If you receive a court claim for rent arrears, immediately seek advice from a solicitor about submitting a defence.

To evict you, the landlord must obtain a possession order from the county court.

If you are a shorthold tenant, there will not be a court hearing. But the landlord can only ask for possession, not rent arrears. He can, however, make a separate claim for the rent arrears as a normal court claim.

You may be able to negotiate repayments, even after a court claim has begun. If you succeed, the agreement should be confirmed in writing, and include confirmation that the court case will be withdrawn, specifying any conditions attached to this, and saying who will pay the court costs to date. If the landlord insists on court action, ask the court to "adjourn the case generally" on the terms agreed.

If the landlord is a registered social landlord and is claiming possession solely on the basis of rent arrears, there are several steps it should have taken before starting court action and a procedure it should follow once it has issued a claim. You need to speak to your housing officer about this.

If you are 8 weeks or more in arrears (2 months or more for tenants who pay monthly) both at the time of the notice and of the hearing, this is a mandatory ground for possession (ground 8 ). This means that the court has no discretion, and has to evict you.

If the landlord relies on ground 8 and the arrears have been caused by a delay in payment of housing benefit, this must be resolved by you with the benefit authorities before the hearing; because the court will not be able to adjourn or make a postponed possession order.

Lesser rent arrears, or a persistent delay in rent payments, constitute only a discretionary ground for possession.

If you have an assured shorthold tenancy, the landlord can automatically get a possession order at the end of the fixed term (or if there is not one, after the tenancy has been in existence for six months) without a hearing. In that case, the landlord will not need to prove a ground for possession, but he will have to give you 2 months written notice before starting the court proceedings.

If the landlord does not agree to a settlement of the rent arrears, or to adjournment of the case, the hearing will go ahead. It is important that you reply to the claim form, and attend the court hearing. The court, in some cases, can make a postponed possession order (but not for a shorthold tenant): but your non-attendance will inevitably mean that an order for possession is made. If possible, be represented by a solicitor at the hearing.

Tenant with rent arrears receives a suspended or postponed possession order

The court may have granted the landlord a "suspended possession order" or a "postponed possession order". The order is suspended or postponed on condition that you pay the rent arrears by specified installments.

If you breach the terms of such an order, the landlord can immediately apply to the court for a bailiff to evict you.

Tenant with rent arrears is threatened with seizure of his goods

A tenant may receive notice that the landlord intends to use a bailiff to seize the tenant's goods: this is known as "levying distress for rent". It can happen even though no court judgement has been entered against you.

It enables the landlord to sell your goods as a way of paying off your rent arrears. You cannot, however, be deprived of the tenancy itself by this procedure.

The landlord must obtain permission from the court before doing this to an Assured Tenant or a Shorthold Tenant.

It can only be used to recover rent arrears owed under the current tenancy, and cannot be used once the tenancy has been brought to an end. Arrears accrued in a previous tenancy must be treated as a normal money debt, and recovered through normal court proceedings.

Advice & opinions on this forum are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.