Defending a Rent Possession Case

The ways that a tenant can defend a rent possession case will depend on:

• The type of tenancy; and,
• The basis on which the landlord is seeking possession.

The law behind residential rent possession cases is quite technical and can be complex. Sometimes it may not even be clear what sort of tenancy – if any - is in existence.

Tenants faced with a possession claim, and in any doubt at all about their position, would be well advised to seek independent legal advice. Free, expert legal advice about tenancy issues is available from a number of sources including the Citizens Advice Bureau and Shelter. Local authority housing departments may also be able to offer advice.

Assured Shorthold Tenancies

Most tenancies granted today by private landlords are assured shorthold tenancies. If a property was let to a tenant to use as their home after 28 February 1997, they have exclusive use of it and the total annual rent is no more than £25,000 it was probably let under an assured shorthold tenancy.

Before seeking possession of a property let under an assured shorthold tenancy the landlord must comply with certain procedures. The correct procedure largely depends on whether the landlord is seeking possession because of rent arrears or because the fixed period of the tenancy has come to an end.

If a possession case is based on rent arrears of two or more months or the end of the fixed period, the defences available to a tenant may be quite limited. However, there are some issues which might constitute a defence.

The Notice Seeking Possession – or Other Paperwork – is Defective

When a landlord seeks possession of a property let under an assured shorthold tenancy he must serve a notice on the tenant informing him that he wants possession of it. There is a prescribed form and wording for the notices and an apparently trivial departure from it could render a notice defective. For example:

• A section 8 notice must give a date before which a rent possession case will not be started, which must be at least two weeks after the service of the notice.
• A section 21 notice seeking possession after the end of the fixed period must give at least two months’ notice and state that the notice expires on the last day of a rent period (i.e. the day before the next rent falls due).

If the notice was never served on the tenant this may also form the basis of a defence.

The Landlord has Got the Facts Wrong

If what the landlord says in the claim is incorrect it may provide a defence. However, a judge may be prepared to overlook trivial errors if they do not go to the heart of the case.

There are a number of errors which might lead to a defence including: the type or terms of the tenancy; the level of the rent; or, the level of any rent arrears.

If a landlord is seeking possession on the grounds that there are at least two months’ worth of rent arrears and the tenant disputes this they should provide evidence to the court to show that payments have been made. If the rent is lower than the figure stated in the claim, the landlord may still get a possession order but it might make the difference between an outright possession order and a suspended possession order.

Is the Rent Due?

If the landlord has served a section 8 notice and is claiming possession on grounds 8, 10 or 11 – all in relation to rent arrears – the rent must be technically due for the claim to be valid.

For the rent to be due the landlord must have provided the tenant with an address in England or Wales at which legal notices could be served on him. This may be the address of an agent acting on the landlord’s behalf. If the tenant does not have any such address for the landlord, or his agent, the rent is not technically due.

Exceptional Hardship

In cases were the court is obliged to make a possession order, the usual order will state that the tenant must leave the property within 14 days. A judge may, however, allow a tenant up to six weeks if he is satisfied that the tenant will suffer “exceptional hardship” if made to leave sooner.

Some possible examples of exceptional hardship may be a tenant who has a sick or disabled child, or one who has just had an operation or given birth. There is no strict legal definition of the term so it is always worth arguing this before a judge.