Who does this guide apply to?
Private Renters: Y
Social Housing Renters: Y
We are so used to landlords - and the power they have - that they can seem unchallengeable. They make profit from our need for a home, and using the courts and the police, can make us homeless. While the situation for tenants in the UK is dire - and looks to get worse under COVID-19 - we still have rights under the law and community power to protect us.
This sheet deals with Rent Arrears. If you are having trouble with Landlord Harassment or have been served a Section 21 notice check out our other guides. For ways to fight back without going through the courts, check our Stuff Your Landlord guide.
Who does this guide apply to?
The law on Rent Arrears applies to two types of tenancies.
- Assured Shorthold Tenancies
- Assured Tenancies
Assured Tenancies are usually people that live in social housing through a Housing Association. If you have this kind of tenancy you can be evicted on the basis of a Section 8 Notice and various grounds for possession as set out in Section 8 and Schedule 2 of the Housing Act 1988. Section 21 notices do not apply (there’s a jargon buster below if you’re not sure what all of this means!)
Assured Shorthold Tenancies are what most private renters have, and they’re usually fixed to six or 12 months. If you have this kind of tenancy, your landlord can evict you on the basis of Section 8 and Schedule 2 grounds. You can also be evicted for no reason at all under the Section 21 procedure once the original fixed term of the tenancy has passed. Read on for more on what this means.
How does the Coronavirus Act affect this?
For Ground 8 (rent arrears) a landlord usually needs to give two weeks notice before they can apply to court for a possession order. Any less than this and it is not valid. The Coronavirus Act 2020 has extended this mandatory notice period to three months if the notice is given after 26 March 2020 and before 29 August 2020. From 29 August 2020 to 31 March 2021 a landlord must give six months’ notice. Unless the law changes, it will go back to two weeks from 1 April 2021.
The landlord has up to one year from the date of issuing the notice to apply to court for a possession order before it becomes invalid.
If your rent arrears are over six months and the notice is given after 29 August, the landlord only needs to give four weeks’ notice.
Evictions are currently banned until 21 Feb 2021. This means that it is illegal for a landlord, someone acting on behalf of a landlord, or Baillifs to remove you from your home. However, your landlord can still service notice, and apply to the courts for a posession order.
It is illegal for your landlord to evict you without first getting a court order.
Housing Act 1988: this is the government legislation that specifies, among other things, a landlord’s rights to re-take possession of their property.
Section 8 and Schedule 2: these outline the processes and rules for a notice of possession. Section 8 is the notice, Schedule 2 is the process and grounds
Schedule 2 contains the grounds for possession. These are split into mandatory (where the court must make a possession order) and discretionary (where the court may make a possession order if it's reasonable). Discretionary ground might mean the court will stop a possession order if the tenant continues to pay rent and agrees to a repayment plan.
For the purposes of this guide, we’re interested in:
- Ground 8: Eight weeks’ rent arrears (mandatory)
- Ground 10: Rent arrears
- Grounjd 11: Persistent delay in rent payments (discretionary).
Why would a landlord serve a section 8, and not a section 21?
If you are an Assured Tenant your landlord can’t serve a Section 21, so they don’t have that easier option.
If you are an Assured Shorthold Tenant and the landlord has a choice, they will generally go for a Section 21 because it requires far less proof.
However, they may decide to use the Section 8 and Schedule 2 procedure if either they can’t serve a valid Section 21 Notice; or they want to give a shorter period of notice.
Once you get to court, the court could decide to issue an outright order - which sets a date for possession, or a suspended possession order - which allows you to stay in your home as long as you keep to conditions such as paying off arrears.
Defences if you have a private landlord
The reasonableness defence: if you have less than eight weeks of rent arrears, you can argue that it is unreasonable for your landlord to evict you on multiple grounds - losing income due to COVID-19 is extremely likely to be considered reasonable.
IMPORTANT: as soon as you owe eight or more weeks of rent arrears, it becomes Ground 8, where there is no reasonable defence and the court cannot prevent the eviction. The Coronavirus Act has done nothing to change this.
If you can and want to reduce the arrears to less than eight weeks’ rent, you should do this before the hearing date. If you owe eight weeks at the date of the hearing, the Court does not have the power to adjourn, even if you have guaranteed money coming in soon.
What counts as reasonable?
- If it’s not your fault you’re in arrears (E.g. if you’re struggling for money because of COVID-19, loss of employment, reduced wages, bedroom tax, benefit cap, two child rule, or benefit problems)
- If you have a good tenancy history, or the landlord has a record of poor conduct
- If there is evidence of efforts you have made to pay the rent or apply for financial support
- If there would be significant negative consequences for you and your housemates/family if you are evicted
- You usually do need to show that there’s a reasonable prospect that you will be able to pay the rent in the future and clear the arrears within a reasonable period of time (like a payment plan with small instalments).
It is the landlord’s responsibility to prove that it is reasonable for the court to make a possession order.
In almost all cases there is at least one good reason why it is not reasonable to evict now and to give the tenant a second chance.
Most of these reasons are put forward as part of the “reasonableness” defence but become relevant at the next stage: when the Court is considering whether to make an outright possession order or to suspend the order on you paying the rent in the future and clearing the arrears within a reasonable period of time.
Have they served the wrong paperwork?
- Wrong defendants (not all joint tenants are listed)
- Wrong claimant (a letting agent or relative of the landlord cannot be the claimant)
- The landlord hasn’t proved their status or right to possession
- The landlord hasn’t provided proof of arrears
- Failure to serve a valid Notice - you can see what one looks like HERE.
Is the landlord lying about how much you owe?
- Check whether you agree that you owe as much as claimed.
- Check that the landlord is only claiming for ‘rent lawfully due’ - no illegal fees! Water rates, council tax, and utility bills are not ‘rent lawfully due’ and cannot be counted as rent arrears, even if you owe them.
- Get evidence of the payments you have made
Submitting a counterclaim
In claim for possession on rent arrears grounds you can “set off” the amount of money that you owe your landlord in rent against the amount they owe you for:
- failing to comply with their repairing obligations;
- failing to protect your deposit in a recognised scheme or give you the required information about the scheme;
- harassment or attempted unlawful eviction
- Get your evidence together: photos, emails, texts, letters.
Are you being discriminated against?
You are protected from discrimination under the Equality Act 2010, and if you are able to provide that your eviction is because of a protected characteristic it will be illegal. What might this look like?
Direct Discrimination: when you are being evicted because of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.)
Indirect discrimination: the landlord has adopted a provision, criterion or practice that puts someone with a protected characteristic at a particular disadvantage when compared with someone who does not have that protected characteristic, and the landlord cannot show that the provision, criterion or practice is proportionate.
Example: Indirect Disability Discrimination – If the reason for your eviction is “because of something arising in consequence of your disability” For example, if you have a diagnosed mental health condition which made you unable to deal with claims for benefits or your financial affairs.
You will need medical evidence that your impairment has directly led to rent arrears.
Defences if you have a social landlord
You can challenge the eviction on any of the points above. You can also challenge if you can show that your landlord has:
- Failed to follow the “Pre-action Protocol for Possession Claims by Social Landlords”
- Failed to act and make decision fairly (the public law defence)
- Failed to act in accordance with your human rights: Article 8 of the European Convention on Human Rights gives you the right to respect for home (invoking human rights legislation honestly only works in rare circumstances, but it would slow down the possession order which might give you some breathing room to pay off the arrears).
What if it’s neither Ground 8 or Section 21?
If it’s not Ground 8 – then the court has wide powers, even if rent arrears still exist.
The Court can adjourn or make a possession order but suspended on terms that you pay your rent and something towards the arrears.
Even if the court makes an outright possession order or you don’t keep to the suspended order and the landlord applies for a warrant for eviction, you can apply to suspend the warrant and the court has the power to give you another chance to stay, if the possession order was made under a discretionary ground.
If it’s a section 21 or a Ground 8 possession claim the courts don’t have these powers.
They’re sending the bailiffs round
It usually takes three to five months until the bailiffs come, if the court has not managed to stop the eviction.
Even so, there are ways of fighting court bailiffs enforcing a possession order: check out this infographic to find out how: .