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Defences for assured tenants with high rent arrears

Our People - David Still
1 September, 2021

The financial fall-out from the Covid pandemic has resulted in many tenants having very high rent arrears. For Assured Tenants and Assured Shorthold Tenants, this can result in their Landlord applying to the Court for possession of their home, for rent arrears, under “Ground 8” (Schedule 2, Housing Act 1988) which, on the face of it, means that the Court has no discretion other than to grant a Possession Order, if the ground is established. However, it is important to note, that even in these circumstances, defences can sometimes be raised and the home saved.

Ground 8 provides that a possession order must be granted where: Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing – (a) if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid; (b) if rent is payable monthly, at least two months’ rent is unpaid… and for the purposes of this ground “rent” means rent lawfully due from the tenant.

If the rent is payable monthly, and there are at least two months arrears of rent at the time of the court hearing, the landlord can apply for a possession order, but it might still be possible to stop a possession order being granted if the tenant can claim that they are owed compensation by the landlord which should be offset against the rent arrears. For example, if the landlord should pay the tenant compensation for disrepair or failing to protect their deposit correctly, then this figure can be used to reduce the rent arrears claimed, and if this brings the figure claimed for rent below two months arrears, the court will not then grant a mandatory possession order.  This is called making a counterclaim. Sometimes the rent arrears are so high, that the compensation claimed by the tenant fails to bring the figure for rent arrears below two months. However, it is also a requirement for the landlord to show that the two months arrears were owed at the time that the landlord served the Notice on the tenant. It can therefore also be a defence if it can be shown that the landlord would be liable to pay damages to the tenant, again for reasons such as disrepair, at the date the Notice was served. This can sometimes make the difference in reducing the accepted amount of arrears at the right time, and save the home of the tenant.

There are also other ways of trying to stop the tenant from losing their home such as adjourning the court hearing, so no evidence is heard, whilst an arguable claim for damages is made. Also, sometimes the landlord fails to serve the proper Notice on the tenant for bringing these types of court proceedings. There can also be defences put forward on public law, human rights or Equality Act 2010 grounds.

It is therefore always important to seek advice and see if you have a defence to any claim for possession of your home for rent arrears.

Associate Solicitor
David Still is an associate solicitor advising on mental health law, community care, homelessness and social welfare law.

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