Law guide: Landlords

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Rent arrears possession procedure

Rent arrears possession procedure

Contents

Rent arrears is the most commonly used of the s 8 notice grounds. This guide will focus on the procedure for rent arrears. However, the procedure to regain possession is the same whether you're relying on rent arrears or any other section 8 notice grounds.

Serving section 8 notice

If the tenant ignores letters and other efforts to mediate or remedy the rent arrears, you can serve legal notice on the tenant; the notice is called a section 8 notice (because it's served under section 8 of the Housing Act 1988). This notice is a demand to the tenant to pay the full amount of rent owed by a specified date (at least 2 weeks from the date of the section 8 notice).

The section 8 notice must be in the form prescribed by the Act. It must inform the tenant that you intend to begin proceedings for possession and specify the ground. If more than one ground is relied on (grounds 8, 10 and 11 can all be relied on for rent arrears) the ground must be set out in full in the notice itself (using the words in the Act). The notice must specify the date when you will start the claim and state that you will not start the claim more than 12 months after the date of service of the notice.

Before you can serve a section 8 notice

Before a landlord can serve a section 8 notice on the tenant, the landlord must have provided written notice to the tenant of the address in England & Wales where the tenant should serve notices on the landlord (as required under section 48 of the Landlord and Tenant Act 1987). If your tenancy agreement includes such an address, this requirement is fulfilled.

If the tenancy agreement doesn't include such an address, you must separately serve a section 48 notice; you don't have to use a particular format – a letter to the tenant specifying an address in England & Wales where notices may be served on the landlord will suffice.

How to serve the notice

As a section 8 notice is a notice served under legislation (i.e. the Housing Act), it is called a 'statutory notice'.

If the tenancy agreement has a paragraph about serving notices

If the tenancy agreement says anything about serving notices, you must be sure that it also includes serving 'statutory' notices. Not all tenancy agreements state this specifically.

Some tenancy agreements include a paragraph stating that notices must be served using 'Section 196 of the Law of Property Act 1925'. It states that notices:

  • must be in writing;
  • must be addressed to the tenant;
  • can be served by:
    • leaving it at the last known address where the tenant lives; or
    • sending it by recorded or special delivery at the last known address where the tenant lives so long as it is not returned by the postal operator (so you won't have to prove that it was delivered to the tenant).

Again, it must also clearly state that this includes service of 'statutory' notices as well.

If statutory notices are mentioned, then you should serve the section 8 notice in the way set out in the tenancy agreement. If the tenancy agreement allows you to service by fax or email, this isn't recommended as it is harder to prove that the tenant received the notice.

If the tenancy agreement contains a paragraph about how to serve notices, but it is unclear whether it applies to statutory notices, you should seek legal advice. Otherwise, if the correct procedure is not followed the section 8 notice could be served incorrectly and be invalid.

If the tenancy agreement doesn't have a paragraph about serving notices

If the tenancy agreement doesn't say how notices must be served you can do it personally or by post.

The best way to serve the notice is by personally serving it on the tenant. You should include a covering letter, and serve each tenant with a copy of the notice. You're recommended to print an extra copy of the notice for each tenant to sign and date, to keep for your records.

Otherwise, you must serve the notice by post, making sure that it and any covering letter is properly addressed to the tenant and pre-paid. Since you will have to prove that it was delivered, you are recommended to use Recorded Signed For or Special Delivery. If you use ordinary post, you should obtain a receipt of posting from the postal service and follow it up by contacting the tenant to confirm receipt.

Applying for an order for possession

If the tenant doesn't pay the rent owed by the end of the notice period stated in the section 8 notice (and is still living at the property), you can apply to the county court for a possession order (to evict the tenant). A possession order will demand that the tenant pay you any outstanding rent, and may include that the tenant pay your costs in applying to the court.

You must apply to the county court in the area where the property is located. To find the address of the court, see Court Service Address Finder.

You can contact the court Monday to Friday, 10am–4pm.

Documents you must send to the court

You must send all required documents to the court, and a cheque for the court fee made payable to HMCTS. To find the amount of the court fee, see leaflet EX50 on the Court Service website.

You must send:

  • Form N5 (Claim form)
  • Form N119 (Particulars of claim)
  • A schedule of the rent arrears setting out:
    • Dates and amounts of all payments due and made under the tenancy agreement, starting from the date the arrears started
    • A running total of arrears for 2 years before the date when the claim is issued at court
  • A witness statement confirming the amount of the arrears (if the arrears have built up over a period of more than 2 years)

When the court gets the claim

The court will:

  • Issue the claim
  • Give it a claim number (the court's reference number)
  • Send a copy of the claim to the tenant
  • Set a date for a court hearing and advise you and the tenant of it

The tenant will have 14 days from the date your claim is served on them by the court to send their defence (if any) to the court. The court will provide you a copy of the defence.

You, or your legal representative, must attend a court hearing to present your case. The tenant must also be present at this hearing. The outcome of the court hearing will depend on the circumstances at the time of the court hearing.

What the court may decide

The decision the court will make will depend largely on whether you're relying on mandatory or discretionary grounds for possession:

  • Mandatory grounds means that the court must grant a possession order requiring the tenant to leave the property (usually within 14 days from the date of the possession order) (Ground 8 above)
  • Discretionary grounds means that the court may grant a possession order if it's reasonable to do so, depending on the facts (Grounds 10 or 11 above)

If you prove one of the discretionary grounds and persuade the court that it is reasonable to make a possession order, the court may decide to:

  • make an absolute order for possession (meaning that the tenant must move out of the property, (usually within 14 days); or
  • allow the tenant to stay in the property as long as they meet certain conditions, such as paying the rent by instalments. This is called a suspended possession order; you can't evict the tenant unless they breach the terms of the order.

There's no guarantee that you'll get an order for possession even if you prove the discretionary ground you are relying on; you'll need to satisfy the court that it's reasonable in the circumstances for the court to make an order for possession.

What the court considers before granting an order for possession

The factors that the court can take into account include:

  • How frequently rent payments have been late. If just one or 2 payments have been late over a long period of time, the court may not consider this as 'persistent' (but may take a different view if the rent is habitually paid late).
  • The length of the delay in payments. (A delay in payment over a period of years is more likely to result in an order for possession.)
  • If the delay in payments has been caused by factors outside the tenant's control, such as delays caused by housing benefit authorities.
  • Whether the tenant has a good reason for the delay or non-payment of rent, such as showing that it's exceptional, or a change in their personal circumstances, such as a divorce or redundancy.
  • What steps you've taken to secure payment of the arrears.
  • If the delay has caused you any financial hardship or expense.

If the tenant ignores an eviction order

You must not evict the tenant yourself.

If the court makes an absolute order for possession and the tenant doesn't move out of the property by the date stated in the possession order, you must:

  • Apply to the court for a warrant for possession – using court form N325
  • Send this form to the court, with a cheque for the court fee made payable to HMCTS

To find the amount of the court fee, see leaflet EX50 on the Court Service website.

The court will arrange for court bailiffs to evict the tenant on your behalf. Under no circumstances should you attempt to evict the tenants yourself without a court order, for example, by changing the locks. Doing so is a criminal offence and you may be fined and/or sent to prison.

Be aware that if the tenant doesn't move out by the date stated in the possession order and you ask them to pay rent, the court could rule that a new tenancy has arisen. You may be entitled to be paid damages if they remain in possession without permission. You should seek legal advice in these circumstances.

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