I have an insured tenant who insists they can clear rent arrears within two months when they receive an inheritance from a relative’s estate. They say I have to wait until then. Is that correct? EM
Arrears: Tenants who are at least two months behind on rent can be sued in a district court – but this isn’t always a given
MailOnline Real estate expert Myra Butterworth replies: A tenant in arrears on his property can be ordered by a district court.
However, there are certain circumstances where this is not self-evident and a possession order is not issued.
We talk to a lawyer about what tenants and landlords need to know when it comes to settling arrears.
Stephen Gold, ex-judge and author, explains: You are not required to wait. A private tenant with rent arrears on his home in England can be evicted by the County Court.
If there are at least two months in arrears, both when the landlord gives them notice to seek possession and when the court hears the case, the court has no discretion over that.
A possession warrant should be drawn up, provided the landlord hasn’t slipped on the paperwork.
The judge does not have the right to suspend a hearing to allow the tenant to reduce the payment arrears to less than two months – not even until the following day. However, things may be different if they left the money on the bus on their way to court and come back again that afternoon after a lost and found visit.
If the tenant has reduced the arrears to less than two months – a penny would suffice – a possession order is no longer required
If the tenant has reduced the arrears to less than two months – a penny would suffice – a writ is no longer required.
But if there is persistent delay in paying the rent, even if there was no arrears when the lawsuit was started, the court is free to sentence the tenant.
This is also the case if there was some delay in the notification and initiation of the case, regardless of the position at the hearing and despite the absence of persistent default.
It is unlikely that a full possession order will be issued on these discretionary grounds if the arrears were covid-related and there is a reasonable plan to settle the outstanding rent, although the court may issue a possession order that will be suspended as long as the current rent is paid. paid together with an amount of any arrears.
If the landlord cancels and starts a lawsuit, it is logical that he invokes all the grounds for possession that are available: the aforementioned mandatory and the discretionary grounds.
And the landlord who wants the tenant out, regardless of whether he gets the back payments or not, can go even further if the lease is up for a definite period of time.
Also giving the tenant a two month no fault notice under Section 21 – they must state that the second notice is ‘without prejudice’ to the first notice – they will avoid being impeded if they fail to get a possession order. on one of the discretionary grounds.
Stephen Gold is a retired judge and author
At the end of the two months, a second claim could be submitted, which would almost always be dealt with on paper as part of an expedited settlement.
The government is committed to the abolition of eviction notices, although it takes a brave person to bet on when the abolition will be effective.
Your priority may be to clear the arrears and get some comfort about future rent, not necessarily seeing the tenant down the road.
You can ask the tenant to put you in touch with the lawyers who act in the settlement of their family member’s estate.
This would enable you to review the tenant’s story with them and ask for their commitment, with the tenant’s consent, to pay you what you owe when the estate is available.
You can also make it a condition that you do not insist on getting the tenant out, that, if the inheritance is sufficient, you receive an advance on the rent, as well as interest on the arrears.
A well-drafted lease must yield interest. If not, the court will usually award interest on arrears at the rate of 8 percent when issuing a judgment.
Incidentally, there is no limit to the amount that a landlord can generally collect for prepaid rent. But there is now generally a cap on a rental security deposit, which is held by the landlord until the end of the rental period and only dipped if the tenant fails to pay. Thanks to the 2019 Tenant Contribution Act, this limit is five weeks’ rent.
It is not uncommon for a tenant to reject a landlord’s claim on the grounds of rent arrears.
Pay off debts: If a tenant has reduced arrears to less than two months, a possession order is no longer required, says Stephen Gold
As a judge, I have regularly had to reject these claims. In most cases, it was because the landlord had gone it alone and hadn’t at least sought legal advice when drafting the possession request. Getting it wrong can be fatal for a claim.
On the other hand, the tenant would often have wisely consulted with a law firm – or an organization such as Shelter – or sought free assistance from an on-duty housing advisor who is more often than not available to assist in court on the days when the property case arises. heard.
Other successful defenses may be based on the landlord’s failure to make repairs as required by law or the lease, with an incidental claim that can reduce or even eliminate the backlog.
A no-fault notice may not be worth the paper it’s written on if the landlord hasn’t protected the tenant’s deposit
And a no-fault notice may not be worth the paper it’s written on if the landlord has failed to protect the tenant’s security deposit with one of the approved government schemes or provide the tenant with prescribed protection information.
This also applies if the tenant has not received an energy performance or gas safety certificate, or has not received an eight-page checklist from the government.
A tenant who wants to create a plan to pay off his arrears can take a 60-day breather by getting a debt restructuring order through a debt counselor.
During this time, the landlord would be paralyzed by both the cancellation and starting a lawsuit regarding the back payments. A fault message would not be affected.
Wales beat England in rent reform with the Renting Homes (Wales) Act 2016 which finally came into force on 1 December 2022 as amended.
Eviction procedures are similar to England, but tenants’ rights have improved and the jargon has changed. In the case of evictions through no fault of the landlord, the minimum notice period of the landlord is six months.
This already applies to new agreements. It extends to pre-December 1, 2022 contracts from June 1, 2023. Wales has its own legislation that prohibits certain tenant payments.