Your rights as tenant

By Sophie Bell

Many people are understandably scared at the possibility of being made homeless, especially during a national health crisis, and this danger feels much greater at a time when they simply cannot pay their rent due to financial difficulties.

The Government accepted early on that steps should be taken to prevent homelessness during the pandemic, and imposed a stay on all possession claims and evictions. Since then, they have put further measures in place to “protect” tenants from eviction; the changes have been frequent, sometimes unclear and often very last minute, and many feel confused as to the current position.

In order to evict a tenant a landlord must serve notice, obtain a possession order from the Court and then apply for an eviction date.  There are new rules for each stage of the process.

Notice Periods
From 26th March 2020 landlords were required to give three months’ notice of an intention to seek possession, whatever the tenancy agreement might provide, and from 29th August 2020 this was increased to six months.  This applies to all types of tenancies and will remain in force until 31st March 2021.  

There are some exceptions, but generally these extended notice periods must be complied with.  If the wrong notice period is given, the tenant would probably have a complete defence to a possession claim.  

Possession Claims
The stay on all possession claims ended on 20th September 2020, but landlords must now either serve “reactivation notices” to re-start proceedings or bring new claims. Either way they are obliged to give the court any relevant information as to what effect the pandemic has had on the tenant and their ability to pay rent. Tenants can also raise these matters themselves. 

Reactivated cases will first be set down for a review date to give both sides an opportunity to explore any alternatives to eviction. Tenants should attend these reviews – they present a worthwhile opportunity to raise any problems they have been having and to try and find a resolution. 

Government measures only delay action being taken against a non-paying tenant; they do nothing to help address the arrears

Where landlords do proceed with their claim, there are many steps tenants can take to try and avoid a possession order being made or an eviction taking place:

• Communicate – keep your landlord updated about your financial situation and the steps you are taking as this may help to persuade them not to take further action. In one case a very vulnerable tenant who was unable to read or write was, with the help of her solicitor, able to work with her local authority landlord to ensure payments towards her arrears were made directly through Universal Credit. The landlord then agreed not to reactivate the possession claim. 

• Seek financial assistance – apply for any benefits you are entitled to, including a Discretionary Housing Payment if needed.  Social landlords, including Housing Associations, will have duties to support you in making such applications.

• Make a proposal for paying the arrears – again, this may lead to a settlement with your landlord to avoid eviction, or at least support an argument that a possession order should not be made. Proposals should be realistic: where a tenant is on a low income, courts will generally order that arrears must be paid off in small weekly amounts

• Consider any counterclaims – a tenant facing a possession order or eviction may be able to counterclaim for compensation, e.g. for a failure to undertake repairs. 

• Seek legal assistance – legal aid is available for those facing possession or eviction so long as they are financially eligible.  A solicitor can help negotiate with your landlord, gather evidence and prepare potential defences and/or counterclaims. 

Judges are very willing to hear arguments as to why a possession order should not be made where a tenant has suffered hardship due to the pandemic. Even in normal times, I find that they are reluctant to evict tenants (especially those who are vulnerable or who have children) unless there is no good reason at all for the arrears or no prospect that these will ever be paid.  

Eviction Ban
A ban on evictions in most cases was imposed in November, and was to expire on 11th January.  On 8th January, following pressure from various charities, the Government extended that ban until 21st February. Last Saturday it was extended again until the end of March.

This ban prevents landlords from seeking a final eviction except in specific circumstances (for example anti-social behaviour, domestic violence or trespassing).  One important exception is “substantial arrears”.  This is defined as arrears of at least six months’ arrears whenever this was accrued.  In theory this means that those who are in arrears solely due to the pandemic could still face eviction. However, I have not yet come across landlords arguing the “substantial arrears” exception in such circumstances.

Longer term
So far, government measures only delay action being taken against a non-paying tenant; they do nothing to help address the arrears themselves.  This disadvantages both tenants and landlords.  Many landlords would prefer not to seek evictions but have little choice if there is no prospect of rents being paid.  A proper financial support package to help stabilise the rental market and address the damage done by the virus would be welcome. Longer term, I would like to see rent controls enacted and no-fault evictions ended. This is the minimum needed if we are to properly begin reversing the current housing crisis in this country. 

The writer is a partner of solicitors Hodge Jones Allen. She lives in Hastings.


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