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The rent arrears needed to use the rent arrears repossession ground

No moneyHere 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.



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6 Responses to The rent arrears needed to use the rent arrears repossession ground

  1. That’s why it’s also important to include any other grounds that may apply, even if they are discretionary.

    In particular landlords should include ground 10 – some rent arrears (even if less than two months) and ground 11 – persistent rent arrears.

    This will demonstrate to the judge if the tenant is constantly in arrears and paying off just enough each time to avoid ground 8.

  2. Beware though that if you do not have a mandatory ground for possession this means you do not get the benefit of the 6 week limit for the Judge to stay and suspend the order.

    I generally do not advise landlords to apply for possession orders on discretionary grounds unless they are happy for the tenants to remain in the property long term so long as they just pay something off the arrears.

    But I find that most landlords who go to the trouble of getting a possession order just want them out.

  3. Definitely. And as if to prove the point, one of our landlords recently only managed to come away with a 12 month suspended possessison order when relying on disrectionary grounds alone.

  4. Guys,
    Why are you waiting for 2 months of arrears to accumulate before taking action against a troublesome tenant?

    Why get bogged down using Section 8 and all its pitfalls?

    Here is a far better way… This works for me every time even if I just want my rent brought up-to-date.

    The moment your tenant is in rent arrears issue a summons in the Small Claims Court for the rent you are owed for that month. Use moneyclaimonline.gov.uk. At the same time issue a Section 21 for mandatory possession, assuming you want rid the tenant. There’s no more messing around with a Section 8 or applying for possession on discretionary grounds.
    If the tenant fails to pay rent for the second month issue a second / third summons etc.

  5. Hi Peter, thanks for posting. I agree absolutely – a section 21 claim is by far the best if you can use it.

    This question was specifically about section 8 notices, and I confined my answer here to the question.

    Also sometimes landlords have no alternative but to use this procedure – for example if a tenant falls into arrears at the start of a long fixed term.

    But yes, section 21 claims using the (so called) accelerated procedure is by far the best way to go if you can.




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About the post author:

Tessa Shepperson

Tessa is a lawyer specialising in residential landlord and tenant law. She runs the Landlord Law website (now in its 12th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google



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Tessa is an English lawyer specialising in residential landlord and tenant law.


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