Here is a question to the blog clinic from Gordon (not his real name) who is a landlord:
Our tenant was 2 months in arrears, so we were about to issue a Section 8 notice. They have now payed 1 month’s rent PLUS £5 extra, so we’ll hold off with the Section 8 for now.
My question is: in order for condition 8 to apply (2 months in arrears), does it need to be 2 FULL months rent? i.e. does the extra £5 mean than we would now have to wait until the 3rd month before this condition applies because one of the months is “part-paid” by £5?
I am afraid the rent has to be a full two months worth for you to be able to use the mandatory rent arrears ground.
The wording of the ground actually reads:
Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing—
(a) if rent is payable weekly or fortnightly, at least [F9eight weeks’] rent is unpaid;
(b) if rent is payable monthly, at least [F10two months’] rent is unpaid;
(c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
(d) if rent is payable yearly, at least three months’ rent is more than three months in arrears;
and for the purpose of this ground “rent” means rent lawfully due from the tenant.
So therefore if the rent for the property is £1,000 per month, there must be a full £2,000 due before you can use the clause.
So this means that the rent must be at least £2,000 on the date you serve the notice AND on the date of the court hearing for possession.
If the rent is below the £2,000 on either of those two dates you will not have met the conditions of the ground. However if does not matter if the rent is below the two months on other days.
Tenants often buy themselves extra time by, as in your case, keeping the rent just under the two months / eight weeks amount. There is not a lot you can do about this.
However it cannot buy them more than two months time. They will have to keep paying after this, if they want to stop you using ground 8.
Note – Landlords will find a lot of guidance on dealing with non paying tenants in my Rent Arrears Action Plan.