Guide To Rent Arrears
9th January 2018
It doesn’t take much imagination to imagine the consequences of non-payment of rent; not only does it impede your ability to pay your mortgage or other costs associated with being a landlord and when left to spiral out of control, it can have devastating effects on your investment, including repossession if there are debts associated with the property purchase and it may likely even result in homelessness; It could also have an adverse effect on your overall opinion of being a landlord. Therefore, it is imperative to deal swiftly with rent arrears and solve any problems preferably before they arise. In this guide, you’ll learn good practices in dealing with rent arrears and eviction.
In an ideal world, a tenant would never fall into rent arrears, but ideal worlds simply don’t exist. In another ideal world, for many landlords, should a tenant fall into arrears the eviction process is simply changing the locks and popping their belongings into black bags on the doorstep. However, doing this will find you on the receiving end of very severe consequences; in one court case, Lee v Lasrado , Lee the tenant of a HMO found herself locked out of her flat with an eviction notice pinned to her door. She sought an injunction against her landlord, Lasrado, for relief and damages; she was awarded £24’600 by the courts. The landlord appealed and there was no change. The point is, do not illegally evict your tenants! There are three steps to the eviction process that you must follow;
You must give written notice for a tenant to leave the home and you’ll have to apply to the court for the tenant to be evicted should they not leave of their own accord at the end of the notice you serve on them to leave. There will be a court hearing unless the landlord uses the accelerated possession procedure, however, the court hearing should be relatively straightforward provided the grounds of eviction are valid (in other words, if the tenant has ‘reason’ to withhold rent, perhaps you’ve refused to repair the boiler and they’ve had no hot water, in which case, this will be considered by the judge. We’ll talk more about revenge evictions later). You’ll use a Section 8 Notice to quit if the tenant breached terms in the tenancy agreement and meet certain conditions (including rent arrears); there are seventeen grounds for eviction as set out in the Housing Act 1988, some are mandatory which means the judge must award possession and others are discretionary, meaning the judge isn’t obliged to grant possession and are therefore best used alongside other grounds to give more reason for the judge to award possession. The notice you serve to the tenant will state the intention to seek possession of the property and under what grounds and in a prescribed format for it to be valid, even the slightest errors can delay the eviction process. In regard to rent arrears, you need to give the tenant at least two weeks’ notice to leave the property before you can move onto the next stage of the eviction process. Another commonly used notice of possession is the Section 21 Notice, this can be used at the end of the tenancy to evict the tenant, this can be used if the tenant is not at fault or otherwise doesn’t meet any of the grounds of eviction set out in the Housing Act 1988. Since October 2015, however, new tenancies that come to an end under the Section 21 Notice must do so with the Section 21 Notice standardised form (this is simply the format in which the government wants us to write the notice; the government calls the standardised form “Form 6A” and it can be downloaded from the resources section of our website), this also includes tenancy renewals.
So, two weeks has passed (or however long the notice sets out, bearing in mind that depending on type of tenancy or rent payment frequency as set out in the tenancy agreement the statutory notice period may change) and your tenant hasn’t left. Put down the locksmith’s business card, remember… we can’t just change the locks. We need apply to the court, this is going to cost money, but it needn’t be a long, arduous process provided your papers are all in order.
The process is relatively straightforward; you make sure your papers (tenancy agreement, copy of the Section 8 notice, rent accounts showing arrears and regular overdue payments of rent and any other supporting evidence) and then you can make an application to the court. Once the application has been made, you’ll likely get a court hearing unless there’s an issue with your paperwork, application or if you’re using the accelerated possession order (more on this shortly). The standard possession claim an be done online and it costs £325, although not all possession claims can be made online (e.g.: trespassers on land such as illegal campsites or broken lease terms), in which case, the paper form will cost £355 and they require a cheque made payable to ‘HM Courts and Tribunals Service’ along with the completed form. Like the online possession claim, the accelerated possession service costs £355 and can only be used if you’re not claiming rent arrears but you can make a separate claim for the rent arrears later; the courts will send your tenants a copy of your application and they will have 14 days to challenge the application from the date they receive it (not the date you made the application or from when you served the notice), if they do challenge the decision then the judge will either take little notice and issue a possession order that states your tenant must leave the property or there will be a court hearing (which only typically happens if your paperwork isn’t in order or the tenants raise important issues that need to be further examined), it isn’t necessarily an issue if there is a hearing as provided there are solid grounds as the judge should still issue a possession order, if the tenant is in exceptional hardship then the judge may grant them further time before they have to vacate the property.
It is important to note that at the hearing, there is a slight chance that the case may be dismissed, in which case no order will be made, and the hearing will come to an end and you’ll be back at square one, this will only happen if the judge believes there are no grounds for possession, you haven’t followed the correct procedure or the Section 21 was invalid. The tenant will still be in arrears. They may delay (adjourn) the hearing for another date if the judge feels they cannot make a decision on that date or the judge may make an order, this is the judge’s legal decision on what should happen next. The order you’ll likely be hoping for is the Order of Possession (Outright Possession Order). The court typically allows the tenant 14-28 days to vacate the property. However, there are other orders to consider too.
Suspended order for possession
A suspended order for possession is like a suspended sentence for a criminal. The tenant can remain in the property so long as they behave and pay their rent on time (much like a criminal must behave to not activate their suspended sentence and go to prison). If they fail to adhere to these conditions, you can ask the court to evict them.
A money order means the tenant must pay you a specified amount of money, the arrears will be waived (as they’ll be covered in the money order) and should the tenant fall into arrears again, you can ask the court to evict the tenant. The court may also order deductions to be taken from the tenant’s income to recover the balance.
The courts may also add money judgements to any possession orders meaning the tenants owe a specific amount of money alongside other orders for possession.
Landlords and tenants can both appeal against a judges decision, this must be done as soon as possible and due to time constraints where a tenant has been ordered to vacate the property plus costs, it is often the case that tenants do not bother with appeals though this isn’t always the case. Some tenants are really determined to stay in properties even when there are plenty of other options on the table.
So, you’ve got a court order and the tenant hasn’t adhered to the order, they’re still in your property and you’re about ready to throw in the towel and move into a cave in the Himalayan Mountains but It’s OK. We’re here. We’re at the final stage of the process and its unfortunate that it’s come this far and yes, you guessed it, there are further costs but don’t worry…
Bailiffs and the Warrant for Possession
The Crown wants to get their fill and what better way to make it unlawful for you to, at this point, wait until the tenant next leaves the house, bring the locksmith in, bag up their belongings, change the locks and send them a text to let them know what’s what. The Crown instead charges you £121 for this.
When the court issues a warrant, the tenant will be sent a notice from the courts giving them a date in which they must vacate the property and if they ignore this, you can ask the court for a Warrant of Possession (Form N325) to arrange for a county court bailiff to evict them. If you’re claiming more than £600 including costs, you can apply for the warrant to be transferred to the High Court for an Enforcement Officer to carry out the eviction. Job done. Your tenants will be out, one way or another.
Now, it is important to understand that tenants have the right to freedom from harassment and illegal evictions. It is a crime to harass or try to force your tenants to move out of a property without following the above procedures. Your tenants might have the right to claim damages and costs of alternative accommodations and, as mentioned previously, the consequences for landlords are dire.
Harassment is a massive grey area, the rule of thumb is that unless you really need to contact the tenant, don’t. Harassment is anything you do (or don’t do) that makes your tenants feel unsafe in or that they have no choice but to leave. It can include restricting services, disconnecting utilities, not giving enough keys to tenants to cause them inconvenience and frustration (especially if there is more than one tenant in the property and you only give one of them a key), refusing to carry out repairs, anti-social behaviour (caused by you or someone on your behalf) and threats and physical violence. An illegal eviction is anything you do that forces your tenant out of your property other than a instructing a county court bailiff or high court enforcement officer, this can include not giving tenants the right amount of notice, changing the locks so they can’t gain entry to their property after the eviction notice period ends or otherwise evict your tenant without a court order.
If the tenant vacates the property and leaves their belongings behind, it still belongs to them and therefore you cannot simply dispose of their belongings; if you do and the belongings are of value (either sentimentally or monetary), you may be subject to a claim from the tenant for damages however, you may charge the cost of clearing the property onto your tenants. Torts (Interference with Goods) Act 1977 states that you can dispose of goods left behind provided you follow a certain procedure which can be found here. Long story short, you must make reasonable attempts to contact the tenant (and you must be able to prove this) before you dispose of the goods. If you choose to sell the goods, it is important to remember that, strictly speaking, the proceeds belong to the tenant, you may deduct the cost of sales and rent arrears and other monies owed by the tenant to you, the landlord.
As mentioned before, rent arrears (and all problems) should be dealt with preferably before they become an issue. This means making contact with your tenant the following day their rent was due that they failed to pay, it could be something as innocent as a change of bank account and they’re still in the process of the 7-day switch guarantee offered by many high street banks. Prevention is always better than cure, as you can see, the cure is costly. In reality, your tenants aren’t going to boast to you that they’re having financial troubles and are unlikely to pay their rent this month. Of course, non-payment of rent can have severe consequences, so severe in fact that you won’t need to worry about evicting your tenants as you’ll be focused on stopping your mortgage provider from seeking repossession of the house.
One way to insulate yourself against this risk is to properly plan and prepare you finances for shortfalls in cash flow caused by non-payment of rent. This isn’t a solution, but it is certainly better than a kick in the teeth. By factoring in costs of lost rent and costs associated with the evictions process, you can at least mitigate the risk slightly.
The best prevention is proper vetting of tenants. There are a multitude of checks you can do on a tenant and some of the most advisable would be referencing, credit and affordability checks, as well as proof of employment, proof of income and previous landlords reference. This will build a picture as to whether or not the tenant will successfully maintain their tenancy and importantly, of course, their rent payments on time, in full, each month.
There are lots of tenant checking services that can take the hassle out of this and we will be happy to point you in the direction of the most reliable in the industry today.
You should consider insurance, including rent guarantee and loss of rent insurance; rent guarantee insurance covers the loss of rent from non-paying tenants whereas loss of rent insurance covers void periods, sometimes policies will be a mix of the two, so it is important to read policy documents fully and, as above, we can recommend insurance providers who may suit your needs.
Guarantors are a fantastic way of ensuring your rent is paid, at least if not by the tenant, by someone they know who is well established, a homeowner and preferably a relative of the tenant. You can also make a claim against a guarantor for unpaid rent if the tenant fails to pay any rent due for whatever reason (including bankruptcy).
It’s very important to stipulate when and how the rent should be paid and how often in the tenancy agreement; if the tenant pays rent in cash, you should provide signed receipts and if the rent is paid weekly, you should provide a rent book (without a rent book, the rent may not be legally due) – you do not need to provide a rent book for tenants who pay rent monthly.
Finally, you need to act fast in the event of rent arrears. It can quickly spiral out of control and if left unchecked or unproperly managed, you can find yourself in a far more extreme situation than you would have been if you just planned properly, communicated effectively and acted swiftly to deal with problems as they arose if not before.