Five ways to avoid tenant defences to rent arrears claims

A recent news item on Landlord Today reports that there is a growing number of tenants are putting in defences to rent arrears repossession claims. There are many reasons for this.

• The increased amount of legal information and help available to tenants,
• amateur landlords issuing defective claims, and (the article claims)
• increased sympathy among Judges for the plight of many tenants in financial difficulties.

But Judges cannot allow a defence where it is clearly inappropriate.  So if you are a landlord thinking of evicting a tenant for rent arrears, you need to be careful before you start your claim.

Here are fives tips to help you

1. Try to avoid bringing a possession claim in the first place

Prevention is always better than cure. The key to this is keeping a close watch on rent payments. It is always easier to get tenants to clear rent arrears if you deal with the situation before large rent arrears have accrued.

Then you will be saved the cost and inconvenience of court action, and the inevitable loss of rent and void period after the tenant has been evicted.

So always contact tenants promptly within a day or so of failing to pay rent and try to resolve the situation with them then. Don’t wait until the arrears are so high that the tenants will never be able to repay them.  (Our rent arrears action plan can help here).

2. Use the accelerated procedure and section 21

There is nothing to say that you have to use the rent arrears ground (ground 8) for possession if you want to evict because of rent arrears. If you can, it is far better to use the special accelerated procedure used for section 21 claims.

However you can only use this if:

• The tenancy is an AST (although most are)
• The fixed term has ended, and
• You have served a properly drafted section 21 notice, and
• The notice period has expired

Perhaps the most important point here is that the fixed term must have ended. This is one reason why it is a bad idea for landlords to give a long fixed term. As was illustrated by the blog clinic case here. If you want to retain the right to evict promptly, then I suggest a short six month fixed term and then allowing the tenancy to roll on as a periodic.

Assuming the fixed term has ended or will end shortly, then, if you have not already issued your section 21 notice, it will often be better to do this and to wait until the notice period has expired and use the section 21 ground than issue immediatly using the rent arrears ground.

There is no defence to a properly drafted claim for possession under section 21.

3. Serve a section 21 notice as well, even if you are going to evict under ground 8

Then if your tenants are able to avoid being evicted under ground 8, for example by bringing the rent arrears to under two months worth, you will still, after a short wait (assuming your fixed term does not have too long to run), be able to evict them under section 21 (should you still wish to do so).

4. Resolve any outstanding disputes with the tenants before issuing proceedings

For example if there is outstanding repair work – get it done. And perhaps agree to remit all or part of the rent arrears by way of compensation to the tenant. Make sure you have documentary proof of this,

Your repairing obligations will apply whether or not the tenant has paid rent, so make sure that a defence of this nature is not an option.

It is also best to avoid doing anything (such as going round and shouting at the tenants) which can be construed as harassment.

5. Before issuing proceedings ensure that the rent claim is worth more than any potential defence

For example say you are bringing a claim for possession based on arrears of rent of £3,000 where the monthly rent is £1,000.

If your tenant is unhappy about your failure to carry out repair works to (say) defective window frames, he may put in a defence claiming compensation for this. However so long as the maximum compensation he is likely to get is under £1,000 you should still be entitled to your possession claim as this will still leave two months rent or more due at the date of the court hearing.

Even better if you are able to prove (quickly, as the Judge will be pushed for time) that the only reason the repair work was not done was the tenants failure to allow you access.

The higher the rent arrears claim, the less likely the Judge is to deny you an order for possession based on a trivial disrepair defence and counterclaim. The usual order in this situation is an order for possession with the disrepair claim adjourned to a later hearing.

In conclusion

As you can see it is important to think carefully about the possibility of a defence before issuing your claim, and so far as possible deal with it in advance. ‘Gung ho’ eviction claims are never a good idea. Particularly as, if you lose your possession claim, the Judge is likely to order that you pay your tenants legal costs.