Here is a question to the blog clinic from Owen (not his real name) who is a landlord.
I would like to evict a tenant who has a rent arrear of 1 & 1/2 month’s rent and a Section 21 notice has been served.
Of course, the reason for the eviction is that the tenant is in arrear.
Theoretically, should I wait for the tenant to become 2 months / 8 weeks in arrear and then serve a section 8 notice?
My thought process is that if the tenant refuses to leave and a court order is required….
If the tenant can prove to the courts that a section 21 notice was served on the grounds of rent arrear, this surely would make the notice null and void? Since the section 21 notice is not designed for reasons of obtaining possession due to rent arrears.
Answer
You do not need to worry. The section 21 process is entirely unconnected with rent and it does not matter whether or not your tenant is in rent arrears. Your reason (for the purpose of the court claim) for asking for a possession order is that you have served a valid section 21 notice and the tenant has not left.
It is quite all right to use it if your real reason for eviction is rent arrears, this is often done.
You will be able to bring proceedings as soon as the notice period has ended – assuming that the notice is correct and that you have complied with all other requirements (for example the tenancy deposit rules).
Note that landlords wishing to evict their tenants will find guidance here. Also:
Just to add a homelessness angle on a similar topic. One of the reasons that an applicant can be deemed intentionally homeless is because they lost their home through arrears that could have been avoided.
What has become pretty much custom and practice in recent years is for homelessness units to still deem a person intentionally homeless even though possession was gained without reference to rent arrears, on the basis that it is likely that the real reason for the s21 was the arrears.
I heard countless homeless applicants defend an adverse decision on the basis that they weren’t taken to court for rent arrears.
Whoah, Ben – that sounds like some mad gatekeeping going on then?! Councils have an obligation to establish the facts, I thought – and determine:
a) if arrears truly exist
b) how responsible the tenant was, for said arrears. (e.g late HB payments wd not be the fault of the tenant)
Only then they should make a decision about intentionality, I thought.
You wouldnt normally get Gatekeepng going on at IH stage. IH is the fourth test so they are already on the homelessness figures by then so gatekeeping would be pointless.
But what you do hear a lot of is advisers saying “If you’ve got rent arrears you’ll be IH”….which is of course not necessarily true.
If there were rent arrears then this would a ‘Relevant fact’ that would be appropriate for the council to investigate and to reach a conclusion that but for the arrears the landlord would likely have continued to let and if the investigating officer called the landlord and that is what he said then it gets harder for the applicant.
The adviser would also need to show that rent arrears came into being deliberately and were not due to something like benefit cuts, a relationship breakdown causing a drop in income, illness or as the code of guidance says itself “A temporary aberration caused by an assessed substance misuse problem”.
Its not that a council cant make an IH decision on a s21 with arrears in the background but that too often advisers will jump in and use that as the sole reason without investigating the surrounding relevant facts and making a composite decision.
The judge in R v. Wandsworth Ex p Hawthorne (1994)said “The decision that there was a considered decision not to pay did not address the reasons for the decision having to be made. The true question being “What caused the decision”.
I would like to tattoo that quote on many a homelessness advisers head!!!! :)