At the beginning of the pandemic, the Government realised the public health dangers of tenants being evicted and put emergency measures in place via the Coronavirus Act 2020 to protect tenants. The result of this emergency legislation was to extend the period of notice that landlords are obliged to give tenants before seeking an order for possession to 3 months. This applies to all notices served between 26th March 2020 and 30 September 2020 and to almost all tenancies.
The Government also introduced measures to put a hold on all possession proceedings. This has been extended twice but is currently due to expire on 20th September 2020. This applied to all applications for possession orders, appeals of possession orders, or applications to enforce possession orders, i.e. through a bailiff warrant. Therefore, if your landlord applied for possession before 27th March 2020 the case will be put on hold regardless of what stage it is at, and no new possession claims will have been processed between 27th March 2020 and 20th September 2020.
Many people, including us at Hodge Jones & Allen are very concerned that after 20th September 2020 there will be an inevitable avalanche of possession cases coming before the courts. If you are one of those tenants who has a possession claim on hold or whose landlord is threatening to bring a possession claim after 20th September 2020, due to issues that arose during the pandemic, then check out the points below as we may be able to assist you in defending yourself.
How to avoid the possession claim
Your landlord can decide to abandon or settle the possession claim at any stage of the process and so there are many things you can do to persuade your landlord not to continue:
- It is important to ensure that each and every time you fall into financial difficulties, whether you are unable to pay your rent, or if there is a delay in your benefits being paid, that you immediately notify your landlord or housing officer. If you are able to put your concerns in writing, or by telephone make sure you keep a detailed diary of all the contact that you have made to try and resolve the issue. Communicating with your landlord makes it much more likely that they will not seek possession and keeping a paper trail and diary of all your actions may well assist you if the matter comes to Court.
- Seek assistance to try and address your difficulties. This may involve chasing benefit applications, applying for a discretionary housing payment from the Local Authority or seeking assistance from friends and family. Whatever you do, ensure you keep your landlord in the loop as well.
- Propose repayment plans. Mostly landlords just want the rent and arrears paid and will be happy to agree a reasonable plan to ensure this happens. Even if your landlord will not agree it is sensible to confirm the plan in writing and stick to it. Again this can be very helpful if the matter comes to court.
- Seek legal assistance at an early stage. Your lawyer may be able to negotiate with your landlord on your behalf, can advise and assist you with protecting yourself as far as possible and may also spot other potential defences at an early stage.
Defences to possession claims for social housing tenants
If the matter does come to Court and cannot be resolved through discussions with the landlord, you may well still have a defence.
For those in Local Authority or Housing Association tenancies, landlords will generally seek possession for rent arrears on a discretionary ground. This means that they will seek to argue that the level of rent arrears is such that it would be reasonable to make a possession order. All of the following points could give you a potential defence to such a claim:
- It is not reasonable to make a possession order? The Court will consider the level of arrears, why these have built up, what steps you have taken to resolve the issue and personal circumstances and, depending on the arguments you can put forward, may simply decide it is not reasonable to make a possession order.
- Has your landlord followed the Pre-Action Protocol for Rent Arrears cases? This Protocol requires social landlords to take various steps to assist their tenants with problems they are having paying the rent. If they have failed to do so they may be in breach of the Protocol which in turn could mean that it is not “reasonable” to make a possession order.
- Has your landlord complied with their own published policies? These will include, for example their Rent Arrears policy, or Eviction Policy, and Vulnerable Persons policy. Again a breach of these policies may provide you with a defence
- Has your landlord properly taken account of any disabilities in your household? If you are a vulnerable tenant, or have children, or suffer with any disabilities then your landlord is required to consider all of these points before looking to evict you. Failure to do so, can give rise to other defences.
- Did your landlord use the proper form of notice and, if this was served between 27th March 2020 and 20th September 2020, did this give three months? If not, you may have a technical defence to the claim.
- Is there disrepair at your property which your landlord has failed to address? This may give rise to a counterclaim for disrepair which could result in an award of compensation being made which in turn could reduce your arrears.
A Housing Association landlord can if they wish to seek possession on a mandatory basis. If you are in arrears of more than 8 weeks or two months (depending on how your rent is paid) your landlord could bring their claim on “Ground 8” under section 8 Housing Act 1988 to recover possession against a tenant. If the arrears are still over these limits at the time of the hearing the Judge will HAVE to make a possession order regardless of why there are arrears. This is the case even where those arrears are due to the Covid-19 pandemic whether through job losses, furloughing or general financial hardship. There are calls, which we would support, to prevent landlords from using Ground 8 where arrears are due to Covid-19 but as yet this has not been agreed by the Government. However, even these claims can sometimes be defended and all of the points listed under “Discretionary Claims” above may well still provide you with a defence.
Can I use Legal Aid?
Sometimes people think that there is no longer legal aid to defend possession cases, but this is not the case. If you are financially eligible, legal aid is almost always available, even at any early stage when your landlord has only threatened possession action. This is because facing the loss of your home is extremely serious and legal advice is often essential. We would therefore urge anyone who is concerned about their landlord taking possession of their property to seek legal advice.
If you’re seeking legal advice relating to eviction please call our highly experienced Social Housing experts on 0808 252 5231 to talk through your situation with us. Alternatively, you can request a call back or get in touch online.