This week we were able to assist a member with a query about a tenant who had not paid the rent in more than two months.
The tenant is a long standing tenant of the landlord but has started to have big problems with paying rent due to a change in their circumstances. They have now missed several rent payments, which was having an impact on the landlord financially.
The landlord had made the decision that he wanted to go down the section 8 route to get his property back, because he wanted to also obtain a money judgement without having to go through small claims court separately. He had tried to get hold of the tenant to discuss the issues, but the tenant wasn’t answering his phone calls. He wanted our advice on how best to proceed.
What we advised
Currently the tenant is in 3 months of rent arrears, which is enough to satisfy ground 8 of section 8. So long as the tenant is still in this amount of arrears at the date of the court hearing, then this is a mandatory ground for the landlord to regain possession. This tenant was shortly going to be in 3 months of arrears, should they not pay on their next rent payment date which was coming up.
Our advisors checked with our landlord that they had protected their tenant’s deposit correctly, which they had. This is important as if it is done incorrectly, or not done at all, then the landlord can be fined for up to 3x the amount of the deposit, and made to return the deposit in addition to this.
This money, if applicable, will be offset against the amount the tenant owes you. If the tenant is not in 2 months of arrears at the time of the hearing, a landlord won’t get possession. A tenant in 2 months of arrears might claim for a deposit fine, resulting in a landlord taking the tenant to court, not getting possession and potentially even paying the tenant money.
A similar situation can arise through other counter claims, such as repair issues that have not been resolved by a landlord.
In this instance, there was no risk of this arising thankfully. There is always the possibility that the tenant pays off some of the arrears to bring it below the 2 months level, and this would leave the landlord with just the discretionary grounds available to them. This is not to say that they will not get possession, but now it is the judge’s choice whether to grant it or not – based on whatever amount of arrears under the 2 months are still remaining.