I have an insured short-term tenant who insists he can pay rent arrears in two months when he receives an inheritance from a relative’s estate. They say I have to wait then. Is it correct? EM
Arrears: Tenants who are at least two months behind on their rent can be fined in county court – but that’s not always a given
Myra Butterworth, MailOnline property expert, replies: A tenant who is late with rent on their home can be convicted in county court.
However, there are certain circumstances where it is not given and a possession order is not made.
We talk to a legal expert about what tenants and landlords need to know when it comes to settling arrears.
Stephen Gold, former judge and author, explains: You don’t have to wait. A private tenant who is late with rent on their home in England can be convicted in county court.
If there is a delay of at least two months, both when the landlord gives them the notice of possession and when the judge hears the case, the court has no discretion in this matter.
An order for possession must be made, provided the owner has not slipped with the documents.
The judge does not have the right to adjourn a hearing to allow the tenant to reduce the backlog to less than two months – even overnight. However, it could be different if they left the money on the bus on their way to court and will be back this 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 do – a possession order is no longer required.
But where there has been a persistent delay in paying the rent, even if there were no arrears when the trial commenced, the judge has the discretion to order the tenant to vacate. .
This is also the case if there were arrears at the time of notification and the opening of the case, regardless of the situation at the hearing, and despite the absence of a continuing default.
An outright possession order on these discretionary grounds is unlikely to be made if the arrears were covid-related and there is a reasonable plan to settle any rent still unpaid, although the court may make an order of possession which is suspended as long as the current rent is paid with an amount on any arrears.
If the owner needs to give notice and take legal action, it makes sense that they rely on all available grounds for possession: the mandatory grounds and the mentioned discretionary grounds.
And the landlord who wants the tenant out whether or not they get the arrears paid could go even further provided any fixed term of the tenancy has come to an end.
By also giving the tenant two months’ no-fault notice under Section 21 – he must state that the second notice is “without prejudice” to the first notice – he will avoid being stranded if he fails to obtain an order for possession on any of the discretionary grounds.
Stephen Gold is a retired judge and author
A second application could be initiated after the two months have elapsed and would almost always be processed on paper under a fast-track regime.
The government is committed to abolishing eviction notices without fail, although it would take a brave person to bet on when the abolition will take effect.
Maybe your priority is settling arrears and getting some comfort on future rent, not necessarily seeing the tenant on the way.
You could ask the tenant to put you in touch with the notaries in charge of the liquidation of the estate of his relative.
This would allow you to check with him the history of the tenant and to obtain his commitment, with the agreement of the tenant, to pay you what is due to you when the legacy is available.
You could also make it a condition of not insisting on getting the tenant out that, if the bequest is sufficient, you are paid advance rent, plus late payment interest.
A well-drafted rental agreement should include interest. If this is not the case, the court generally awards default interest when it renders a judgment at the rate of 8%.
Incidentally, there is no limit to the amount a landlord can generally collect for initial rent. But there is now usually a limit on a rent deposit, which will be held by the landlord until the end of the tenancy and will only be plunged if the tenant fails to make a payment. Thanks to the Tenant Fees Act 2019, that limit is five weeks rent.
It is not uncommon for a tenant to deny a landlord’s request for possession based on rent arrears.
Debt repayment: 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 regularly had to reject these requests. In most cases, it was because the landlord had gone it alone and hadn’t, at least, taken legal advice in drafting the notice of possession. Getting it wrong can be fatal to a claim.
On the other hand, the tenant had often wisely conferred with a legal center – or an organization such as Shelter – or sought the free assistance of a custodial housing counselor who is most often available to assist in court on days when the possession case is ongoing. heard.
Other successful defenses may be based on the landlord’s failure to repair as required by law or the rental agreement, with a cross-claim that could reduce or even wipe out the arrears.
A disclaimer may not be worth the paper it’s written on if the landlord hasn’t protected the tenant’s deposit
And a disclaimer may not be worth the paper it was written on if the landlord failed to protect the renter’s deposit with one of the approved government programs or give the renter prescribed information about protection.
This also applies if the tenant has not received an energy performance or gas safety certificate, or an eight-page government rental checklist.
A tenant who wants to put a plan in place to pay off their arrears could seek a 60-day break by obtaining a debt relief order through a debt counsellor.
During this time, the owner would be paralyzed both to give them notice and to take legal action regarding the arrears. A disclaimer would not be affected.
Wales beat England in tenancy reform with the Tenanted Homes (Wales) Act 2016 which finally came into force, as amended, on December 1, 2022.
Eviction procedures are similar to those in England, but tenants’ rights have been strengthened and the lingo has been changed. For no-fault evictions, the minimum notice required by the landlord is six months.
This already applies to new agreements. It extends to agreements prior to December 1, 2022 from June 1, 2023. Wales has its own legislation prohibiting certain tenant charges.
