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Pre-Action Rules in Rent Arrears Cases

By: Louise Smith, barrister - Updated: 16 Oct 2012 | comments*Discuss
 
Tenant Repossession Possession Local

Special pre-action rules may apply to repossession cases. These rules apply to some claims where a social landlord – such as a local authority or a Housing Action Trust – is seeking to repossess a property from a tenant for rent arrears. The rules do not apply to private landlords or to social landlords seeking possession for a reason other than rent arrears or for both rent arrears and another breach of the tenancy.

The Purpose of the Pre-Action Rules

The aim of the rules is to encourage social landlords and their tenants to resolve issues arising out of rent arrears without having to go to court. If the rules are not followed a judge could take this into account when deciding whether to make a possession order.

When a Tenant First Gets into Rent Arrears

A social landlord should try to make contact with a tenant as soon as possible after they first get into rent arrears. The landlord should try to find out:
  • why the tenant is in rent arrears;
  • what the tenant’s financial circumstances are; and,
  • whether the tenant is entitled to any benefits or assistance with the rent.
If contact is made by letter, a separate letter should be sent to each tenant. Letters should also give a timeframe within which the tenant should respond.

The landlord and tenant should try to agree between them a reasonable amount for the tenant to pay towards the rent arrears.

Rent Statements

Social landlords should provide rent statements four times a year showing all rent which has fallen due and what the tenant has paid. The statements should include a running total of the rent arrears.

Addressing any Special Requirements of a Tenant

If the landlord knows that the tenant may have difficulty understanding written correspondence about rent arrears, they should take reasonable steps to give information in a format which the tenant can understand. The landlord may have to show the court what steps they took to ensure that the tenant understood the information.

The landlord should take extra care if the tenant is under 18 or vulnerable. This could include considering whether a tenant has the mental capacity to defend a possession claim, whether they may need assistance from a litigation friend or whether the tenant may have any disabilities which must be addressed to avoid discrimination.

Help With Claiming Benefits

Where a social landlord is aware that a tenant may be entitled to financial help with paying their rent, they should take steps to ensure that the benefit is paid or help the tenant make a claim for the benefit. If a tenant is entitled to housing benefit, and is in the process of claiming it, a social landlord should not usually start possession proceedings while the benefits claim is being processed. The tenant should cooperate with the landlord to resolve any problems relating to a claim for housing benefit.

After a Landlord Sends a Notice Seeking Possession

Before starting a repossession court case a social landlord must send the tenant a formal notice warning them of repossession. Once the landlord has served this notice on the tenant they should still make reasonable attempts to contact the tenant to discuss the rent arrears.

If the landlord and the tenant reach an agreement for the repayment of the rent arrears – and the tenant sticks to the agreement – the landlord should not start court proceedings. If the tenant subsequently breaks the agreement, the landlord should again warn the tenant that they intend to start a court case and allow them a set time to get back on track with the agreement.

The landlord and tenant should also consider whether alternative dispute resolution might be a better way of resolving the problem. A judge who subsequently considers the possession case could ask the parties to provide evidence that they considered different ways of resolving the issue rather than through court proceedings.

After a Repossession Case Has Started

The landlord should provide the tenant with an up-to-date rent statement at least ten days before the court hearing. The landlord should also tell the tenant when the hearing is due to take place, what type of court order they will be applying for and warn the tenant that they should attend the court hearing.

If the landlord and tenant reach an agreement for the repayment of the rent arrears once a court case has started, the landlord should delay the court hearing for so long as the tenant complies with the agreement. If the tenant later breaks the agreement the landlord should give the tenant a warning – and a chance to make up the default – before restarting the court case.

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