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Eviction for Rent Arrears

By: Louise Smith, barrister - Updated: 2 Feb 2019 | comments*Discuss
Eviction rent arrears tenant assured

Most tenancy agreements today are "Assured Shorthold Tenancies". These allow a landlord to repossess the property if a tenant does not pay the rent. However, before repossessing the property the landlord must give the tenants at least two weeks' notice and obtain a possession order. Notice is provided by sending the tenant a "Section 8 Notice", this tells the tenant:

  • That there are rent arrears and how much is owed;
  • The legal "Grounds" on which the landlord intends to rely(see below);

Different Grounds for Possession

The circumstances which entitle a landlord to start possession proceedings are described in the Housing Act 1988. The Section 8 Notice will state the Grounds relied on and give the definition of each one. The Grounds will depend on the amount of rent owed:

  • There are arrears equivalent to two months' or eight weeks' rent - Ground 8;
  • There are some rent arrears - Ground 10;
  • Whether or not there are any arrears, the tenants have been persistently late in making a payment or payments - Ground 11.

To rely on a Ground the situation described has to be true both on the date of the Section 8 Notice and when the case comes to court. Landlords usually hedge their bets by relying on more than one Ground.

When a Judge Must Make a Possession Order

If Ground 8 can be proved when the case comes to court the judge must make a possession order. This will usually give the tenants 14 days before they have to leave the property. The judge has no power to grant a suspended possession order.

A judge can only allow longer than 14 days if he decides that a tenant will suffer "exceptional hardship" if he has to leave within two weeks. Judges have differing views on what constitutes exceptional hardship but good examples might be a tenant who has just had an operation or who has a disabled child. If the judge decides that a tenant will suffer exceptional hardship he can allow the tenant a maximum of six weeks before he has to leave the property.

When a Judge can Choose to Make a Possession Order

If there are less than two months' rent arrears at the date of the hearing and/or the Section 8 Notice, the judge will decide whether he thinks it is reasonable to make a possession order. The judge may also grant a suspended possession order if the tenant can make payments towards the rent and arrears.

Defending a Possession Claim

In cases where the judge must make a possession order the most usual defence raised is that rent has been deliberately withheld because the property is defective. The judge may decide to adjourn the case so that both sides can provide more evidence about the alleged defects. However, there is no guarantee that this will happen as the fact remains that there are still sufficient arrears for a possession order to be made.

In other cases, the judge will hear what both sides have to say and will decide if it is appropriate to make a possession order, to adjourn the case or to strike out the claim.

Possession Orders during the Fixed Term of a Tenancy Agreement

Tenancy agreements generally have a fixed term, usually of six or 12 months. A landlord is still entitled to seek a possession order for rent arrears during the fixed term.


The deposit held by the landlord cannot be set off against overdue rent. The deposit protects the landlord against any damage the tenant may have done to the property. The tenant is only entitled to have the deposit returned once they have vacated the property and the landlord has had a chance to inspect it.


Depending on the level of arrears, the judge hearing a possession case might have no alternative but to make a 14-day possession order. Tenants facing this kind of claim should do whatever they can to reduce the arrears to less than two months' rent before the hearing. If this is not an option, tenants should start looking for alternative accommodation as soon as possible.

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HI Seeking advice and guidance towards our specific problem. Currently own a leasehold flat within a purpose built ( 1977 ) block of 6 sharing a common shared stairwell. One flat probably owned from new by a tenant who died and his son retained same for his home. He has since died and the property has since been unoccupied since 2014. However, his son eventually vacated the flat ( it is in an uninhabitable condition ) and placed same up for sale. A buyer was found but the sale stalled as there was No record with the Land Registry re the legal title of the flat. The building requires essential Roof Repairs and although we the remaining 5 tenants are happy to fund this by way of equal shares, without this flats contribution we are stuck ! We initiated Section 20 re the roofing works to flush out a legal owner but this failed. Even on a daily basis our funds are limited as there is no reserve fund and this flat owes 5 years service charge funds ! Is it possible to repossess the flat and repair and sell and recover our costs then place the remaining funds into a holding account ( Government Solicitor ?) should a legal owner eventually surface. Or are there any other viable solutions available worth exploring....we are getting desperate for genuine advice please Kind regardsLeighton Downing
l - 2-Feb-19 @ 10:26 AM
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