Tenants who have rent arrears, fall in two categories:
- The tenant has the funds but does not want to pay
- The tenant does not have the money to pay the rent.
It’s often the latter, tenant, for one reason or another does not have the money, to service the rent.
It is prudent, to communicate with the tenant politely, so you have a better understanding of the tenants financial circumstances.
The court is the last resort, only consider court action when all other reasonable options have been exhausted.
A court order is required to evict a tenant from there home. Damages for unlawful eviction of a tenant can be several thousands of pounds, so please follow the correct procedure.
If a tenant has stopped paying the rent, try to communicate with the tenant, at an early stage.
Do not let the rent arrears escalate before you take action.
If you have reached a stage where you have exhausted all options, then you should consider court action.
However, before taking the matter to court, you should consider writing off the rent arrears, and in turn, ask the tenant to give up, vacant possession of your property. Even if you get a money judgement, the chances of you physically getting your money back is highly unlikely. To avoid stress, paying court and legal fees, if the matter can be settled amicably, you should consider this as an option.
If you go to court, the process is going to cost a minimum of £800.
If your tenant, persistently fails to pay the rent and fails to give up possession, then court action is the only option left to you.
What notice to serve, section 8 or 21?
Your options, through the court process, are section 8 and section 21.
You are required by law, to serve a notice on your tenant, before you can issue a possession claim. The notices you can serve are section 8, section 21 or both.
Section 8 notice, for rent arrears, is a 14-day for grounds 8,10 &11 (Under Coronavirus Act 2020 the notice period for section 8 & 21 is three months).
Notice has expired, what do I need to do?
When the 14 (or 3 months, if applicable under the Act) days expire, if the tenant has failed to pay the rent arrears, then your lawyers will need to issue a claim for possession.
If you have served a section 21 notice, you are required to give, at least two months notice to your tenant (Under Coronavirus Act 2020 the notice period for section 8 & 21 is three months).
If the tenant fails to give up vacant possession, after the expiry of the two months (or 3 months), your lawyers will need to issue a possession claim, under the accelerated route.
Can I write off the rent arrears and ask the tenant to leave?
Some tenants do not have the money to pay the rent arrears, or they may be on state benefits and not have the means to pay the rent arrears. In such cases, you can consider writing off the rent arrears and asking the tenant to vacate on the proviso you write of the rent arrears.
You can go to court, get a judgment against a tenant, that does not mean you are going to get any money from the tenant. Court judgment or not if the tenant does not have any money, you are not going to get paid.
Can my possession claim fail?
Possession claims, under section 21, can fail, due to the landlord, not complying with one, of many requirements.
Section 8 claims can fail, due to disrepair, or the tenant making a counterclaim for breaches under the deposit legislation.
If you are successful in court, and a possession order has been granted. The possession order ordinarily, gives the tenant 14 days to vacate. Maximum time, the judge can give the tenant, is 42 day.
If the tenant fails to vacate after the date in the possession order has expired, you will have to instruct a county court bailiff.
We strongly advise you should not attempt to issue a possession yourself. Instruct a housing lawyer, to do the work for you.
List of things, that you need to be aware of, that could make a section 21 notice invalid:
Correct expiry date on the notice
You cannot serve a section 21 notice during the first 4 months of the tenancy.
The section 21 notice must be on Form 6A if your tenancy started or was renewed on or after 1 October 2015.
You must get at least 2 months notice in the Form 6A (3 months may be applicable, seek legal advice).
Your must issue a possession claim within 6 months. The section 21 notice will become invalid if you exceed the 6-month rule.
Your section 21 notice, could be invalid if your deposit was not protected, in a government scheme. The notice could be invalid if the deposit was protected, later than 30 days, after your most recent contract commenced.
You must give to the tenant, the Deposit certificate and the deposit scheme prescribed information, within 30 days.
A section 21 notice, can be invalid if you did not give your tenant, the following document, at the time the tenancy commenced:
- gas safety certificate
- energy performance certificate
- ‘How to rent: the checklist for renting in England
The above 3 do not apply, if your tenancy started before 1 October 2015 and you not been renewed the tenancy.
From 1 June 2019 landlords and agents can only:
- take up to 5 weeks’ rent as a deposit
- charge fees in certain situations
You cannot serve a section 21 notice if you took a higher deposit or a fee that is banned. You can only serve a valid notice after the overcharged amount first has been returned.
If your letting agent overcharged the tenant, you as a landlord can still serve a section 21 notice.
Houses in multiple occupation, such as bedsits, need a licence. Some councils require all private landlords to have a licence. If you require a license, and you do not have one, you cannot serve a section 21 notice.
You cannot serve a section 21 notice, for the next 6 months, if the council has ordered you to carry out repairs, under either an:
- Improvement notice
- Emergency works notice
Source: British Landlords Association
Author: Marc Attwater
Date: 1st of August 2020