After 23 August 2020, the Courts will once again start processing eviction proceedings against tenants.
So if you are a tenant facing this – what should you do?
There will be no immediate threat. No one is going to be booted out during August (save perhaps in very serious cases) and in most cases, even if your landlord succeeds in getting a possession order, it is going to be months and months before any bailiffs appointment is made.
So you will have time to try to sort things out.
Re-activation notices and the new rules
In fact, you may have more time than you think if your landlord has already started proceedings as these will only be taken forward by the courts if the landlord serves on you and files at court a ‘re-activation notice’.
If this is not done, the claim will just sit on the court system and nothing will happen.
This is set out in a new ‘practice direction’ giving new rules which will apply between 24 August and 28 March 2021 (which is discussed here). It also provides for similar notices to be served with new claims and again, if this is not done, the case will not proceed and hearings will be adjourned.
The two main types of claim
Assuming that (where required) the re-activation or other notice is served and the case proceeds, what you should actually do will depend on the reason for your eviction. There are two main grounds used by landlords:
- The no-fault section 21 ground, and
- The serious rent arrears ground
Defending section 21 claims
Although there is no defence to a properly prepared section 21 claim, many landlords have errors in their paperwork or have not fully complied with the rules – which include a number of ‘prerequisites’ which they need to have complied with to be entitled to use section 21 at all (although some only apply in England).
- Dealing properly with deposits paid
- Service of certificates such as the gas safety certificate and the EPC (in England)
- Compliance with the Tenant Fees Act requirements (which means any illegal fees must have been refunded)
- Service of the How to Rent booklet (in England)
- Having obtained an HMO license if one is required
- Compliance with the time limits (eg no notice can be served within the first four months of a new tenancy – in England)
- Compliance with the ‘use it or lose it’ rules – in most cases a s21 notice is only valid for 6 months (in England)
- Having given the proper notice period – temporarily this is 3 months in England and 6 months in Wales (until September 30, 2020, unless the rules are extended)
- Use of the prescribed form, Form 6A (in England)
- Being unable to serve a valid notice within six months of service of a Council Improvement Notice (in England)
If you think any of these may apply – go and seek legal advice. You will find a list of services you can use (many of them free) here.
Defending rent arrears claims
Probably the best thing you can do, if you can, is to pay off the rent arrears – which will remove the landlords right to evict completely (on the basis of rent arrears anway).
If that is not possible – try to bring the arrears down to under two months worth. This will then allow the Judge to set a repayment schedule which will allow you to remain if you keep up the payments.
If neither of these are possible – see if you can try to reach an agreement with your landlord anyway. Most landlords will be only too happy to let you stay if they are going to get their rent. Few landlords enjoy going to court and most will agree to accept a little less to be spared the hassle.
In some circumstances, you may be able to delay or even stop claims entirely by bringing a counterclaim. For example:
- If the landlord has failed to protect your deposit or serve the prescribed information. This will entitle you to claim a penalty of up to 3x the deposit amount which could be sufficient to clear off the arrears
- If the property is in poor repair. You will probably need some help with this one, but many of the services here will be able to assist and some may even be willing to take on your case on a no win no fee basis.
If you are on benefit or a very low income, note that you may be eligible for legal aid. This will, however, depend on the details of your case as legal aid will only be available if you have a valid defence. But it is well worth investigating if you think you may be in with a chance.
If you are in Wales
You may have a defence if your landlord is not registered and licensed by Rent Smart Wales – as only properly licensed landlords and agents can serve a valid notice. You can do a search on your property address or postcode here.
Note also that there is currently a six months notice period for Welsh landlords so check this too.
The fact that your landlord has served a notice on you or even issued proceedings against you, does not mean that your landlord will actually be entitled to evict you.
Many landlords act in person without having taken proper advice and make mistakes.
Judges are generally unforgiving of landlord errors. They take the view that where someone’s home is at stake, landlords must get their paperwork correct and it is rare for them to overlook mistakes other than obvious typos.
So don’t give up. Take advice and follow it.
However, you, in turn, must follow the rules yourself and in particular pay your rent, or as much of it as you can.
Indeed payment of rent should be a priority – as your chances of employment will drop to virtually zero if you are made homeless. So prioritise rent over other debts and do not let other creditors bully you into paying them first.
There is a lot of help out there. Make sure you use it.