Council & HA Tenants
The Eviction Process
There is a lengthy legal process through which your landlord
must go before they can evict you. It is designed to give you every
opportunity to come to an arrangement to clear your arrears.
You will initially receive reminders of the outstanding amount.
Many social landlords will also try to arrange to meet you in
person in order to resolve the problem.
If an arrangement is not made to clear the arrears then your
landlord may apply to the courts to resolve the matter. Rent
arrears are a money debt and as such they are a civil matter and
dealt with by the County Court.
Notice of Landlords intention to go to Court
If an arrangement to clear the arrears is not made, or the
arrears continue to accrue, then your landlord will eventually
serve you with Notice that they intend to apply to the County Court
for a Possession Order.
This Notice will be called a Notice of Seeking
Possession.
The Notice remains valid for legal proceedings commenced within
12 months after their service or expiry,depending on if you are a
secure or assured tenant.
The Notice will give a period of time to clear the arrears or come
to an arrangement with the landlord. This is usually at least 28
days, but can be 14 days if you are an assured tenant.
Once the Notice has expired, and not before, the landlord can apply
to the County Court for their claim for possession of the property
to be heard.
The Notice must give the grounds on which the landlord is intending
to apply to the court. The grounds relied upon will depend on your
type of tenancy.
If you are a tenant of the Council (TMO managed property) then you
are a secure tenant under the Housing Act 1985, if your tenancy
started before 1st January 2007.
Introductory Tenacies
From 1st Januray 2007, the TMO has introduced Introductory
Tenancies. These are tenancies on a trial bassis of 1 year and it
is much easier for you to be evicted in the first year. After the
first year, you will automatically become a secure tenant, unless
you have reecived a Notice that the Introductory tenancy will be
extended. This is different to a Notice of Seeking
Possession.
The introductory tenancy can be brought to an end if the landlord
obtains a possession order from the court. Where the court makes
an order for possession the tenancy ends on the date given in the
court order.
The judge is not allowed to look at whether the landlord is acting
reasonably if possession is sought. Provided that the correct
procedure has been followed, the Judge must make a possession
order. There is no power for the court to postpone, stay or
suspend the order for possession.
If an Introductory tenant falls into rent arrears and a possession
order is obtained, the possession order ends the tenancy even if a
suitable payment arrangement has been agreed or if the arrears are
cleared in full. The tenancy cannot be revived and the occupier
becomes a trespasser from the date specified in the possession
order.
In this situation, the landlord cannot grant a new introductory
tenancy unless the occupier qualifies for another offer through the
Council's allocations scheme.
Housing Association Tenants
If you are a tenant of a housing association, then you will either
be an Assured or a Secure Tenant, depending on when your tenancy
began.
If you are a housing association tenant and your tenancy began
before 15th January 1989, then you have a Secure Tenancy under the
Housing Act 1985.
For Secure Tenants the ground for possession for
rent arrears is discretionary and is Ground 1, Schedule 2, Housing
Act 1985, "…rent lawfully due from the tenant has not been
paid…".
If are a housing association tenant and your tenancy began on or
after 15th January 1989, then you will either have an
Assured or an Assured Shorthold Tenancy under the
Housing Act 1988.
The vast majority of people who became housing association tenants
after 15th January 1989 will be Assured Tenants, although some
housing associations did create a few Assured Shorthold
Tenancies.
For Assured and Assured Shorthold Tenants there are two
discretionary and one mandatory ground for possession for rent
arrears.
The first and most common discretionary ground is Ground
10, Housing Act 1988, "…some rent lawfully due from the
tenant…is paid…".
The second discretionary ground is Ground 11, Housing Act
1988, "…persistent delay in paying rent…".
The mandatory ground for possession is Ground 8 Housing Act
1988, as amended by Housing Act 1996 s101. If at the date
of the service of the notice and at the date of the hearing there
are 8 weeks' rent unpaid, if rent is payable weekly, or 2 months,
if rent is payable monthly, then the court must grant
possession.
In terms of legal rights, a Secure Tenancy gives the most
protection, followed by an Assured Tenancy and then an Assured
Shorthold Tenancy.
However, in general, Registered Social Landlord's try to treat
their tenants on the same basis.
So in the respect of rent arrears, social landlords will usually
apply to the court for possession on discretionary
grounds, where it is up to the Judge to decide whether it is
reasonable to grant the order.
This is despite the fact that for Assured Tenancies and Assured
Shorthold Tenancies, there are also mandatory
grounds for possession where the Judge must grant a
possession order if the case is proved.
However, in certain exceptional cases, such as where a tenant has
been causing a nuisance or behaving in an anti-social manner,
social landlords reserve the right to seek possession on a
mandatory ground.
Court Summons
The court will send you a summons to appear before it on a
specified date. You will receive at least 21 days notice of the
hearing.
The court summons will include details of your landlords' claim
including the amount of arrears, what Ground they are seeking
possession and any details on your financial circumstances that
they are aware of. The court papers will also include a reply
form.
The reply form gives you the opportunity to put
your side of the argument. You may be disputing all of the arrears,
or part of them.
You may be making a counter-claim, such as
offsetting some of the arrears against damages for disrepair.
Alternatively, you may be explaining your financial circumstances
to the court and asking them to accept payment by instalment.
The summons will include the date on which your landlord's claim
will be heard. This is called the Hearing Date.
You will normally get several weeks, if not a month's, notice of
the hearing date.
Court Hearing
Unless you have agreed an arrangement with your landlord in
writing, then it is imperative that you attend the Hearing.
Legal aid may be available for you to be represented by a
solicitor, subject to the usual means test and the validity of your
case.
Alternatively, you may be able to take advantage of the
Duty Rota Scheme, which normally operates on
possession days at the county court. The scheme is run by local
advice agencies and law centres, to provide an advocate for anyone
who wants one on the day. Of course, you are strongly advised to
seek advice before the day!
The court wants to hear your side and resolve the matter amicably
between landlord and tenant if it can. The court does not want to
evict you.
Nearly all possession proceedings brought by social landlords will
be on discretionary grounds. That means that it is for the court to
decide whether to grant a possession order or not.
In so doing, the court must decide not only whether the ground for
possession is proved but that it is reasonable to make you leave
your home because of the arrears or other breach of your
tenancy.
In order to decide whether it would be reasonable
to make a possession order, the court will look at such things as
the following:
- Personal circumstances, such as health, family etc.
- financial circumstances
- length of tenancy
- past record of rent payments
If you do not return the reply summons, attend court, explain
your circumstances or make a reasonable offer to pay off the
arrears by way of instalment, the court will grant a possession
order.
In the exceptional case where a social landlord seeks possession
on mandatory grounds, you should seek advice as soon as the Notice
is served.