EnglandHow a breathing space or mental health crisis moratorium affects the possession process for tenants in rent arrears
A moratorium prevents creditors, including landlords, from taking action against debtors who are not able to pay.
During a moratorium a landlord cannot:
issue a rent arrears notice
apply for a possession order on rent arrears grounds
enforce a warrant of eviction on rent arrears grounds
This guide explains how a moratorium affects each stage of a possession claim, and what a landlord can and cannot do.
This section covers tenants in rent arrears who have not had a notice from their landlord to start court action.
Breathing space or mental health crisis moratoriums prevent a landlord from issuing a notice on rent arrears grounds while the moratorium is in place.
It does not stop a landlord from serving a section 21 notice or using grounds other than rent arrears.
People in a breathing space or mental health crisis moratorium can include a private or social landlord as a creditor. Rent arrears are a qualifying debt for a moratorium. The tenant is liable to pay their ongoing rent during the moratorium.
A landlord can take action for new rent arrears that accrue after the moratorium starts.
A landlord cannot give a notice for rent arrears included in a breathing space or mental health crisis moratorium while the moratorium is in force.
A notice for rent arrears given during the moratorium is null and void. In some cases, the court has the power to dispense with notice if it is just and equitable to do so, but not if the claim is brought on mandatory grounds.
During the moratorium a landlord can serve a:
section 21 notice
notice on grounds other than rent arrears, for example, antisocial behaviour
Find out more about landlord notices during a breathing space on Shelter Legal.
A moratorium does not affect the debtor's liability for payments that fall due while it is in force.
Rent arrears are a priority debt during the moratorium. Tenants should try to prevent their arrears from increasing wherever possible. Tenants in arrears could use the respite from paying other debts to reduce their rent arrears if they have extra income left over.
A landlord can issue a notice relating to rent arrears after the moratorium ends including any new arrears that accrued during the moratorium.
The landlord cannot add interest that would have normally fallen due for the period of the moratorium.
A moratorium could prevent the landlord from issuing a claim on rent arrears grounds. Refer or signpost the tenant for debt advice.
The debt adviser will check if the person has had a breathing space moratorium in the past. A new breathing space moratorium cannot start within 12 months of a previous one ending. People receiving mental health crisis treatment can have a mental health crisis moratorium at any time.
A debt adviser can place someone in a moratorium very quickly if they have details of their debts. People who have all details of their income and expenditure and their debts together could be placed in a breathing space moratorium to take effect on the following day.
A mental health crisis moratorium can take longer to put in place as the debt advice provider needs evidence from an approved mental health professional.
Find out more about where to get debt and money advice on Shelter Legal.
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This section covers tenants who have had a notice from their landlord, but the landlord has not started a claim for possession.
Landlords must not issue a possession claim against a debtor for rent arrears included in the moratorium. It is a prohibited step to enforce a moratorium debt.
A landlord can issue a claim on grounds other than rent arrears or following a section 21 notice during the moratorium as long as they have given the correct notice.
People in a breathing space or mental health crisis moratorium can include a private or social landlord as a creditor. Rent arrears are a qualifying debt for a moratorium. The tenant is liable to pay their ongoing rent during the moratorium.
Landlords cannot give notice for rent arrears included in a breathing space or mental health crisis moratorium while the moratorium is in force.
A notice for rent arrears given during the moratorium is null and void. In some cases, the court has the power to dispense with notice if it is just and equitable to do so.
If a moratorium was granted after the landlord issued the notice, the notice remains valid.
A landlord can issue a section 21 notice or a notice on grounds other than rent arrears during the moratorium.
Read more about landlord notices during a moratorium on Shelter Legal.
A moratorium does not affect liability for payments that fall due while it is in force.
Rent arrears are still a priority debt during the moratorium. Tenants should try to prevent their arrears from increasing wherever possible.
If a deadline to take a step to enforce a qualifying debt expires during the moratorium or within eight weeks of the end of the moratorium, the deadline is extended. The new deadline is eight weeks from the end of the moratorium.
For example, if the landlord served a rent arrears notice to the tenant before the moratorium started and the notice expired during the moratorium, the landlord has up to eight weeks from the end date of the moratorium to bring a claim.
A moratorium could prevent the landlord from issuing a claim on rent arrears grounds. Refer or signpost the tenant for debt advice.
The debt adviser will check if the person has had a breathing space moratorium in the past. A new breathing space moratorium cannot start within 12 months of a previous one ending. People receiving mental health crisis treatment can have a mental health crisis moratorium at any time.
A debt adviser can place someone in a moratorium very quickly if they have details of their debts. People who have all details of their income and expenditure and their debts together could be placed in a breathing space moratorium to take effect on the following day.
A mental health crisis moratorium can take longer to put in place as the debt advice provider needs evidence from an approved mental health professional.
Read more about where to get debt and money advice on Shelter Legal.
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This section covers tenants who have received a possession claim with a court date, but the court has not dealt with the case.
The landlord is not permitted to issue a new claim for possession on rent arrears grounds during the moratorium. It is a prohibited step to enforce a moratorium debt.
The court can make a possession order during the moratorium because the regulations allow the court to make an order or judgment in conclusion of a claim.
Landlords must notify the court if court proceedings are underway when a breathing space starts. The tenant can also notify the court in case the landlord does not.
The court can make a possession order in conclusion of a claim that was started before the moratorium. That means a moratorium is not effective in preventing possession action at this stage.
The tenant or their representative at court could ask the judge to adjourn a possession hearing that is due to take place during the moratorium. The court cannot adjourn the hearing if the landlord proceeds on a mandatory ground, including the rent arrears ground 8.
Read more about grounds for possession on Shelter Legal.
The court can send notices or correspondence to a debtor in relation to an action or proceeding.
The landlord can issue a new claim for possession on rent arrears grounds after the moratorium ends.
If the deadline to bring an action including possession proceedings falls during the moratorium, the time limit is extended by eight weeks from the end of the moratorium.
A breathing space or mental health crisis moratorium is not effective in preventing the court from making a possession order. It would prevent the landlord from obtaining a warrant to enforce the possession order, as this is a step to enforce a moratorium debt.
Tenants who have not applied for a moratorium might need one for their other debts. If they do not, they could wait to use the moratorium protections at a later stage, for example if they are due to be evicted for rent arrears.
Find out more about where to get debt and money advice on Shelter Legal.
This section covers tenants who have received a possession claim that has gone to court, and the court has adjourned the case with a date to come back, or for as long as the tenant keeps to set terms.
Rent arrears are a qualifying debt for a breathing space or mental health crisis moratorium. Arrears included in the terms of an adjournment cannot be enforced during the moratorium.
A tenant is protected from enforcement during the moratorium, but once it ends the tenant is at risk of a possession order if they have not made the payments set by the court.
An adjournment on terms is sometimes called a general adjournment. It means the case does not come back to court if the tenant makes the payments the court has ordered. Failure to make the payments means the landlord can restore the case, and the landlord could ask for a possession order.
The landlord should not apply to court to restore the claim during the moratorium. This is a prohibited step to enforce a moratorium debt. Once the moratorium ends, the landlord could apply to restore the case.
The court could be more likely to make a possession order if the tenant has not made the payments it ordered, even if the tenant was in a moratorium when they failed to pay.
A moratorium does not stop liability for ongoing payments, so the debtor should make payments under a general adjournment if they can.
An adjournment to a fixed date means the matter will come back to court for a hearing. Adjournments are sometimes granted to allow the tenant to claim benefits or get legal advice, or for the landlord to provide extra information.
The case can come back to court during the moratorium, as it allows the court to make an order in conclusion of an ongoing case.
The adjournment could contain terms that the tenant pays their rent plus an extra amount. The court could be more likely to make a possession order if the tenant has not made the payments it ordered, even if the tenant was in a breathing space moratorium when they failed to pay.
During the moratorium a landlord could apply to restore a claim based on a:
section 21 notice
non-rent ground, for example, antisocial behaviour
A referral to a debt advice provider for entry into the moratorium prevents the landlord from restoring a claim, but only while the moratorium is in force.
Tenants who have not applied for a moratorium might need one for their other debts. If they do not, they could wait to use the moratorium protections at a later stage, for example, if they are due to be evicted for rent arrears.
The debt adviser will check if the person has had a breathing space moratorium in the past. A new breathing space moratorium cannot start within 12 months of a previous one ending. People receiving mental health crisis treatment can have a mental health crisis moratorium at any time.
A debt adviser can place someone in a moratorium very quickly if they have details of their debts. People who have all details of their income and expenditure and their debts together could be placed in a breathing space moratorium to take effect on the following day.
Find out more about where to get debt and money advice on Shelter Legal.
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This section covers tenants who have a suspended possession order.
Rent arrears are a qualifying debt for a breathing space or mental health crisis moratorium. Arrears included in a suspended possession order cannot be enforced during the moratorium.
A tenant is protected from enforcement of the suspended possession order during the moratorium. Once it ends, the tenant will be at risk of enforcement if they have not made the payments set by the court.
A suspended possession order to pay rent arrears should not be enforced in the moratorium, as long as the debt was included in the application.
A breathing space does not stop liability for ongoing payments, so a debtor should still make payments under a suspended possession order. If the debtor doesn't make the payments, the suspended order could be enforced at the end of the moratorium.
An application to vary the possession order could reinstate the suspended order and prevent the landlord from applying for an eviction warrant.
During the moratorium, a landlord could enforce a suspended possession order made on grounds other than rent arrears, for example, antisocial behaviour.
Where more than one ground for possession is specified on the order, the landlord could enforce the suspended order on a non-rent ground for possession.
A referral to a debt advice provider for entry into the moratorium prevents the landlord from enforcing a suspended possession order made on rent arrears grounds.
The debt adviser will check if the person has had a breathing space moratorium in the past. A new breathing space moratorium cannot start within 12 months of a previous one ending. People receiving mental health crisis treatment can have a mental health crisis moratorium at any time.
A debt adviser can place someone in a moratorium very quickly if they have details of their debts. People who have all details of their income and expenditure and their debts together could be placed in a breathing space moratorium to take effect on the following day.
A mental health crisis moratorium can take longer to put in place as the debt advice provider needs evidence from an approved mental health professional.
Read more about where to get debt and money advice on Shelter Legal.
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This section covers tenants who have had an outright possession order made against them on discretionary or mandatory rent arrears grounds.
Landlords must not take a step to enforce a possession order made on rent arrears grounds during a breathing space or mental health crisis moratorium. This includes applying for an eviction warrant.
The landlord can enforce a possession order made on grounds other than rent arrears, or under section 21. For possession orders made on a combination of rent and non-rent grounds (for example antisocial behaviour) the landlord can apply for a warrant on the non-rent grounds during the moratorium.
Landlords must notify the court if court proceedings are underway when a breathing space starts. Any action the landlord takes against the tenant contrary to the breathing space rules is void.
The court must ensure that any proceedings to enforce an order concerning a moratorium debt do not progress during the moratorium period.
Proceedings include:
holding a hearing
making or serving a warrant or writ
instructing an enforcement agent to serve an order, warrant, or judgment summons
Courts can send notices or correspondence to a debtor in relation to an action or proceeding.
Courts may grant permission to continue legal proceedings if they consider it reasonable and not detrimental to the debtor. It would be difficult for a landlord to argue that enforcement of a possession order was not detrimental to a tenant unless they had already moved out.
During the moratorium a landlord could apply for an eviction warrant based on a:
section 21 notice
non-rent ground, for example antisocial behaviour
A landlord who has a possession order on a rent arrears ground and a non-rent arrears ground could evict the tenant on the non-rent ground only.
If the time limit for enforcement expires because the person was in a breathing space, the deadline is extended by eight weeks.
A referral to a debt advice provider for entry into the moratorium prevents the landlord from enforcing a possession order made on rent arrears grounds.
The debt adviser will check if the person has had a breathing space moratorium in the past. A new breathing space moratorium cannot start within 12 months of a previous one ending. People receiving mental health crisis treatment can have a mental health crisis moratorium at any time.
A debt adviser can place someone in a moratorium very quickly if they have details of their debts. People who have all details of their income and expenditure and their debts together could be placed in a breathing space moratorium to take effect on the following day.
A mental health crisis moratorium can take longer to put in place as the debt advice provider needs evidence from an approved mental health professional.
Find out more about where to get debt and money advice on Shelter Legal.
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This section covers tenants who are notified their landlord has applied or intends to apply for an eviction warrant.
The landlord is not permitted to apply for an eviction warrant on rent arrears grounds during the moratorium as it would be a step to enforce a moratorium debt.
Landlords must notify the court if court proceedings are underway when a breathing space starts. Any action the landlord takes against the tenant contrary to the breathing space rules is void.
The landlord might not notify the court about the moratorium. The tenant should tell their landlord and the court about the moratorium in writing straight away. They should include their claim number and the reference they receive from the Insolvency Service to confirm their entry into the breathing space register.
Suggested wording for contacting a landlord and the court is available at the end of this guide under template letters.
During the moratorium a court can issue an eviction warrant based on a:
section 21 notice
non-rent ground, for example antisocial behaviour
A landlord who has a possession order on a rent arrears ground and a non-rent arrears ground could evict the tenant on the non-rent ground only.
The landlord can issue a new application for an eviction warrant on rent arrears grounds after the moratorium ends.
If the deadline to bring any action including possession proceedings falls during the moratorium, the time limit is extended by eight weeks from the end of the moratorium.
A referral to a debt advice provider for entry into the moratorium could prevent an eviction.
The debt adviser will check if the person has had a breathing space moratorium in the past. A new breathing space moratorium cannot start within 12 months of a previous one ending. People receiving mental health crisis treatment can have a mental health crisis moratorium at any time.
A debt adviser can place someone in a moratorium very quickly if they have details of their debts. People who have all details of their income and expenditure and their debts together could be placed in a breathing space moratorium to take effect on the following day.
A mental health crisis moratorium can take longer to put in place as the debt advice provider needs evidence from an approved mental health professional.
Read more about where to get debt and money advice on Shelter Legal.
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This section covers tenants who have received a notice of eviction from the courts.
The tenant must not be evicted on the basis of a moratorium debt during a breathing space or mental health crisis moratorium.
The landlord must notify the court if an eviction is due to take place. The tenant or their legal representative could also contact the court, to make sure it is aware of the moratorium.
A tenant who is evicted for a moratorium debt during the moratorium can apply to court for a warrant of restitution to be granted access to their home. They could also be entitled to claim damages for unlawful eviction.
During the moratorium a tenant can be evicted based on a:
section 21 notice
non-rent ground, for example antisocial behaviour
A landlord who has a possession order on a rent arrears ground and a non-rent arrears ground could evict the tenant on the non-rent ground only.
For breathing space, Insolvency Service guidance to the courts states that eviction should be suspended to no earlier than 14 days after the end of the moratorium.
If the debtor has applied to suspend the eviction, the application will be rescheduled to after the end of the breathing space moratorium but before the eviction.
For a mental health crisis moratorium, any scheduled eviction cannot take place. This will be reviewed by a judge if suspended beyond six months.
If the debtor has applied to suspend the eviction the application will be rescheduled to after the end of the mental health crisis moratorium but before the eviction.
A referral to a debt advice provider for entry into the moratorium could prevent an eviction.
The debt adviser will check if the person has had a breathing space moratorium in the past. A new breathing space moratorium cannot start within 12 months of a previous one ending. People receiving mental health crisis treatment can have a mental health crisis moratorium at any time.
A debt adviser can place someone in a moratorium very quickly if they have details of their debts. People who have all details of their income and expenditure and their debts together could be placed in a breathing space moratorium to take effect on the following day.
A mental health crisis moratorium can take longer to put in place as the debt advice provider needs evidence from an approved mental health professional.
Read more about where to get debt and money advice on Shelter Legal.
The regulations state that the landlord must inform the court about the moratorium.
Sometimes landlords are not notified about the moratorium immediately. Or, they might not understand they must notify the court. The tenant should tell the court about the moratorium in writing straight away, with their claim number and the reference they receive from the Insolvency Service to confirm their entry onto the breathing space register.
The tenant or their legal representative should tell the enforcement agent about the moratorium using the contact details on the notice of eviction.
Suggested wording for contacting a landlord, the court, and the enforcement agent is available at the end of this guide under template letters.
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This section contains suggested wording tenants can use when they tell their landlord, the court, or a bailiff about the moratorium.
Use our suggested text to inform landlord, the court, or enforcement agent about a breathing space or mental health crisis moratorium. Copy and paste the text, deleting anything that is not appropriate, and adding details as necessary.
My authorised debt adviser has placed me in a breathing space/mental health crisis moratorium that started on [insert date]. As my rent arrears have been included, you will have received notification of the moratorium from the Insolvency Service.
My Insolvency Service reference is: [insert]
During the moratorium I am protected from:
a notice on rent arrears grounds
a possession claim on rent arrears grounds
an eviction warrant on rent arrears grounds
These steps are prohibited under regulation 7(7) The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020.
Any step taken contrary to these regulations is null and void.
I am working with my debt adviser to resolve my financial problems, including dealing with rent arrears. I understand these are a priority debt and I will take steps to address them.
Claim number/warrant number: [insert]
Insolvency Service reference number: [insert]
My authorised debt adviser has placed me in a breathing space/mental health crisis moratorium that started on [insert date]. As my rent arrears have been included, I cannot be evicted for rent arrears whilst the moratorium is in force.
This step is prohibited under regulation 7(7) The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020.
Any step taken contrary to these regulations is null and void. The High Court in Lees v Kaye [2022] EWHC 1151 (QB) has held that an eviction that takes place during the moratorium is unlawful, and the occupier is entitled to a warrant of restitution.
If you have applied to suspend the eviction warrant: Guidance to the courts from the Insolvency Service states that my application to suspend this warrant must be listed after the breathing space but before the eviction.
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This section has breathing space and mental health crisis moratorium regulations and government guidance.
These regulations establish the breathing space and mental health crisis moratoriums.
The Insolvency Service has produced guidance for creditors and money advisers.
The government has published guidance on mental health crisis moratoriums.
HM Courts and Tribunals Service has produced guidance for creditors on their responsibilities to the court, including how the court must deal with an application to suspend an eviction warrant.
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This section contains links to more information from Shelter Legal including summaries of key court cases.
A breathing space moratorium under the debt respite scheme gives a person in debt a 60-day pause in enforcement action from their creditors.
Mental health crisis moratoriums
A mental health crisis moratorium under the debt respite scheme gives a break in creditor enforcement action for a person receiving mental health crisis treatment.
Breathing space debt moratorium and possession proceedings
Breathing space and mental health crisis moratoriums under the debt respite scheme prevent landlords and lenders from taking possession due to rent or mortgage arrears.
Breathing space and landlord notices in possession proceedings
Landlords cannot give notices for rent arrears included in a breathing space moratorium while the moratorium is in force, rules banning the notice depend on the tenancy type.
Eviction and sale of a debtor's property declared ‘null and void’ under the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020.
The County Court granted an injunction to the claimant to prevent joint borrowers of a secured loan from applying for a breathing space moratorium.
Find more debt case law summaries on Shelter Legal.
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Find out more about breathing space and mental health crisis moratoriums on Shelter Legal.