This is the wording from the Act.
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 eight weeks’ rent is unpaid;
(b) if rent is payable monthly, at least two 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.
Now lets pick it apart.
This is the big one in many senses, the last of the mandatory grounds for eviction and the source of so much contention for landlords, both social and private.
Worth noting that the old Housing Corporation frowned on housing associations using this one. Some did and some didn’t, whilst others only used it occasionally. Its quite widespread these days though.
However, despite being a mandatory ground many housing officers report that judges still give suspended possession orders even where the ground is proven.
Also worth noting that social landlords have to fulfil the court requirements of a lengthy and protracted pre-action protocol before even applying to court, something private landlords aren’t troubled by.
Unlike section 21 proceedings the length of time of a notice using this ground is only 2 weeks (probably nearer three weeks once you factor in time for service), so in theory it is quicker but unlike s21 proceedings there has to be a court hearing with this one and the wheels can come off quite quickly in terms of adjournments for sloppy paperwork submitted by either side. And, not to put too fine a point on it, if the tenant borrows enough money to get the rent arrears down to just £1 under the required period then the ground is lost because the arrears must be outstanding both at the date of the notice and the date of the hearing.
And, not to put too fine a point on it, if the tenant borrows enough money to get the rent arrears down to just £1 under the required period then the ground is lost because the arrears must be outstanding both at the date of the notice and the date of the hearing.
Many landlords choose section 21 proceedings which are procedurally easier and don’t require a hearing even where there are rent arrears, preferring to either chase the money through a different route or waiving the arrears altogether as a waste of time.
However if you do use the rent arrears ground, the Possession Claims Online Procedure (PCOL) is available to you – this is worth using as you will generally get an earlier hearing date. Plus it’s cheaper.
Tenants can’t argue that the arrears are down to a delay in the housing benefit procedure. Responsibility for paying the rent lies with the tenant, however it may be they arrange for payment of it.
If a tenant writes a cheque against some or all of the arrears and that cheque is accepted by the landlord then the cheque is considered to be delivered on the date the cheque was given, providing the funds actually clear. This is known as a ‘Conditional payment’. Generally the court will adjourn the proceedings to see if the cheque clears and re-list the case for hearing if it doesn’t.
Defending this ground.
It’s really down to number crunching. Are the arrears as claimed by the landlord? Where there is no written tenancy agreement with the relevant clause then under common law the rent is properly calculated in arrears not advance, so that is worth examining.
Also there is the possibility of defending this ground with a counter claim for disrepair or breach of covenant for quiet enjoyment, any damages awarded can be offset against the arrears
And, of course, if the landlord has failed to protect the deposit and/or serve the prescribed information – you can counterclaim for the penalty for non-compliance. Which will be something between 1 and three times the deposit some (the precise amount is in the discretion of the Judge – see here).
Defence advocates need to look at ways of reducing the arrears before trial. Bear in mind that local authorities have budgets for what is called Discretionary Housing Payments (DHP) which can be used for people claiming housing benefit to clear arrears or top up shortfalls of rent.
In areas of high housing demand you will often find that DHP will mainly be used for families in ‘Priority need’ who otherwise the council might have to pay to rehouse if evicted.
Landlords will find loads of information and guidance, should you wish to issue proceedings based on this ground, both on this blog and on my Landlord Law website service. For costs information see here.
This is the last of the mandatory grounds – next time we venture into the uncertain arena of discretionary grounds – which (private) landlords use at their peril!