Rent Arrears

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    What can go wrong? If your motives not to pay the rent are justifiable then you can start a procedure where you can fight and counterclaim.

     

    Defenses

    The following are the most common defenses that can be used by tenants against claims for rent arrears possession:

    ·         If the property is suffering from some sort of disrepair, then the tenant can file a counterclaim that can be offset against the rent arrears claim.

    ·         If the tenancy deposit scheme rules have not been complied with the tenant can file a counterclaim for the penalty to be offset against the rent arrears.

    ·         If the rent arrears schedule does not contain a full record of payments made by the tenant for which he or she has proof of paying.

    The court may adjourn proceedings to give the tenant extra time to resolve any housing benefit problems.

    ·         If the claim for possession is following a serving of a Section 21 Notice the following defenses can be raised:

     

    The Section 21 Notice is invalid.

    The tenancy deposit has not been protected in one of the prescribed deposit schemes and/or the landlord has not provided the tenant with the relevant information in line with the tenancy deposit rules.

    The tenant’s property is part of an unlicensed House of Multiple Occupation.

     

    The Hearing

    The case will be listed for a hearing if the Standard Possession Procedure has been used by the landlord.

    If the landlord uses any of the mandatory grounds for possession or possession under Section 21 Housing Act 1988 the Judge will be bound to make an Outright Possession Oder if it is proved that the tenant is in breach of the mandatory grounds for possession and/or the requirements of Section 21 have been fulfilled by the landlord.

     

    Court Orders

    Outright Possession Orders

    This will require the tenant to vacate the property by a specified date. A Warrant of Eviction will need to be applied for by the landlord if the tenant does not leave the property by this date.

    The possession can take place forthwith after the hearing or withing 14 or 28 days. If the tenant can show that they will suffer exceptional hardship by leaving early, then the possession can be postponed by up to 42 days by the Judge.

     

    Suspended Possession Order

    This means that the tenants can remain in occupation of the property as long as they comply with the terms of the order. For example, if the possession was based on rent arrears the Court may allow a suspended sentence as long as the rent is paid in full plus an amount towards the arrears. If the terms are not met the landlord can apply to the court for eviction by bailiffs.

     

    Adjournment

    The judge can adjourn case if he/she is unable to make a decision on the case. The adjournment can be for a specified period or indefinitely.

     

    Dismissal

    The claim can be dismissed for the following reasons:

    ·         The correct procedure for bring the case to court has not been followed by the landlord

    ·         It has not been proved by the landlord that any grounds for possession have been breached.

     

    Money Judgement

    If the judgement for possession is on the grounds of rent arrears, then the Court will also issue a money judgement against the tenant. This requires a sum of money to be paid by the tenant to the landlord which will be the amount claimed for rent arrears plus Court costs.

     

    Court Costs

    In the event of a possession order being made the tenant may be required the pay the legal costs of the landlord commencing possession proceedings.

      

    After the hearing

    Tenant without fail will received the copy of the possessing order from the court which will set out in detail the order made by the judge during the possession hearing and explain in details what the each party responsibilities are or will be.

     

     Challenging the possession order

    In some cases, the tenants can challenge the possession order by making an application to set inside or vary the possession order. How can tenant in this untenable situation do this!

    ·         If they do not attend the hearing due to ill health /exceptional circumstances

    ·         The tenants were not notified of the heating date

    ·         The tenants did not receive the court paper

    ·         The tenants filled a late response to the claim

    If the tenants have genuinely be affected by the above condition, then they can make an application to set inside or vary the possession order under Part 55.19 Civil Procedure rules

    ·         The tenant under these circumstances will have only 14 days to make the application

    ·         The court may decide to set aside or vary an order made under 55.17

    Although the tenants have the opportunity to make applications to set inside or vary the possession order. The tenants will have to meet all condition required:

    ·         They have shown good reason for not attending the trial

    ·         They have acted quickly on finding out about the possessing order

    ·         They have a reasonable prospect of wining their case at rial

    If the tenants are successful in their application, the possession order will be varied to a minor order or set inside. The tenants will be back to where they were before the start of the possessing order.

    If the possession is set inside then the court will give a new date for a new hearing, where the case will be dealt with as a new case.

    by: tenancycentral uploaded Jul 13