Rent arrears possession

To evict a tenant for rent arrears, a landlord must:

• give the tenant a valid notice

• issue a County Court claim for a possession order

• apply for a warrant to allow bailiffs to evict the tenant

The tenant might have a defence that allows them to stay in their home.

Housing Loss Prevention Advice Service

The Housing Loss Prevention Advice Service (HLPAS) provides early legal advice on housing, debt and welfare benefits problems before a case reaches court. The service is free and not means tested.

Renters at risk of losing their home can get help from when they are told their landlord is seeking possession. For example, when they receive a notice for rent arrears.

The service also provides court duty scheme advice and assistance for people with a possession hearing.

Find more about the HLPAS service on Gov.uk including a tool to find a local provider.

Financial help available to tenants

At any stage of the process, the tenant can seek financial help. Paying off arrears or arranging a payment plan could prevent eviction for rent arrears.

The tenant might be able to:

• increase their income from benefits

• apply for a discretionary housing payment (DHP)

• get debt support and a breathing space moratorium

Find out more about where to get debt and money advice.

Breathing space moratoriums

Tenants are protected from possession claims based on rent arrears included in a breathing space or mental health crisis moratorium.

A landlord cannot serve a notice, start a possession claim or take steps to enforce a possession order regarding a moratorium debt.

Find out more about possession proceedings during a breathing space.

Most private tenants have an assured shorthold tenancy. Most housing association tenants have an assured tenancy.

A landlord can serve a section 8 notice on an assured or assured shorthold tenant to start the possession process. They must follow the correct process and use the right form to serve a valid section 8 notice.

The landlord needs a ground, or reason, to evict a tenant using section 8. The landlord must give at least two weeks' notice for a rent arrears ground.

Find out more about section 8 notices for assured tenancies.

Assured mandatory ground 8

Ground 8 is a mandatory ground. The court must order possession on ground 8 if the tenant owes at least:

• eight weeks' rent if they pay weekly or every two weeks

• two months' rent if they pay monthly

• three months' rent if they pay quarterly or yearly

The tenant must owe the rent when the landlord serves the notice and at the court hearing.

The court must order possession if it is satisfied the conditions are met.

Find out more about ground 8 possession.

Assured discretionary grounds 10 and 11

The court can order possession on ground 10 if the tenant owes any amount of arrears. The tenant must owe the rent when the landlord serves the notice and at the court hearing.

The court can order possession on ground 11 if the tenant has persistently paid their rent late. The tenant does not have to be in arrears on the day of the court hearing.

Grounds 10 and 11 are discretionary. The court must decide if it is both:

• satisfied the ground has been made out

• reasonable to make a possession order

When a landlord uses more than one rent arrears ground

Landlords can list multiple grounds on the same notice and might use all three rent arrears grounds.

A tenant can prevent mandatory possession on ground 8 by reducing the arrears below the minimum amount by the court hearing. The court can still consider whether to order possession on discretionary grounds 10 or 11 if it is reasonable.

At the court hearing, the landlord must tell the judge whether they want to proceed on mandatory ground 8, or the discretionary grounds 10 and 11.

When a landlord can use a section 21 notice

A section 21 is a no fault notice. A landlord of an assured shorthold tenant could serve a section 21 notice on a tenant with rent arrears. The landlord does not have to prove a ground.

A landlord might serve a section 21 notice and section 8 notice at the same time. Where ground 8 cannot be used because the tenant reduces their arrears below the minimum amount, the landlord can still seek possession using the section 21 notice possession process.

Find out more about the section 21 notice possession process.

Most local authority tenants have secure tenancies. A local authority can use a notice of seeking possession to evict a secure tenant.

The notice must:[1]

• be in the prescribed form

• state a date after which possession proceedings can start

• specify the ground or grounds on which possession is sought

• set out the particulars of the ground, explaining why the ground is being relied upon

Find out more about a secure tenancy notice seeking possession.

Secure discretionary ground 1: Tenant owes rent

The landlord can serve a notice using ground 1 if the tenant breached a term of their tenancy or owes rent. There is no minimum sum of rent arrears.

The tenant must owe the rent when the landlord serves the notice and at the court hearing.

Ground 1 is a discretionary ground, so the court must decide if it is both:

• satisfied the ground has been made out

• reasonable to make a possession order

Local authorities and housing associations should follow the pre-action protocol before taking possession proceedings on rent arrears grounds. Find the full pre-action protocol on Gov.uk.

Where the claim is brought on a discretionary ground, the court might adjourn or strike out the claim when the landlord has not followed the protocol.

Protocol when a tenant accrues arrears

A social landlord should take steps to help the tenant as soon as possible after the tenant accrues arrears and before serving a notice seeking possession. The landlord should:

• contact the tenant to discuss the cause of arrears and their financial circumstances

• try to agree an affordable arrangement for paying the arrears

• advise the tenant to seek independent debt and benefit advice

• provide rent statements showing rent outstanding and paid in the last 13 weeks

• assist the tenant with a benefits claim, including a discretionary housing payment

A landlord should not start proceedings where the tenant has provided all necessary evidence to support a benefit claim and there is a reasonable expectation that they will receive benefits.

Protocol after serving a notice

After serving a notice of seeking possession, and before issuing possession proceedings, landlords should:

• try to contact the tenant to discuss the situation

• send the tenant a copy of the pre-action protocol

• postpone court proceedings while the tenant is complying with a payment agreement

Where a tenant stops making payments, the landlord should warn the tenant if they intend to resume possession proceedings. The landlord should give the tenant time limits and instructions on how to avoid further action.

Protocol when there is a court hearing

At least ten days before the court hearing, the landlord should tell the tenant:

• the date and time of the court hearing

• the possession order they will apply for

• that they need to attend the court hearing

• what they know about the tenant's benefit claims

The landlord should also provide the tenant with an up-to-date rent statement.

If the tenant has complied with an agreement to pay after the landlord has issued proceedings, landlords should agree to adjourn court proceedings on terms that the tenant sticks to the agreement.

Where the tenant fails to comply with a repayment agreement, landlords should advise the tenant they intend to go back to court providing clear time limits.

Protocol when a housing association uses mandatory ground 8

A housing association seeking possession on ground 8 should write to the tenant before they issue a possession claim. They might include this letter with a notice. The landlord should:

• explain why they intend to seek possession

• ask the tenant to tell them any relevant information

• give clear time limits for responses

The tenant can explain their circumstances and the landlord is expected to consider these before proceeding. If they decide to proceed, the landlords must confirm they have asked the tenant for information, and give brief reasons for bringing the claim.

If a landlord fails to follow the pre-action protocol using the mandatory ground, the court must still order possession where the ground is met unless the tenant has a defence. The court can consider a landlord's failure to comply when making a cost order.

Read more about ground 8 possession on Shelter Legal.

A landlord using a rent arrears ground must prove that the unpaid rent is lawfully due from the tenant. The court might adjourn or strike out the claim if the landlord cannot prove the rent is lawfully due.

When the tenancy agreement provides for the payment of additional charges, such as water charges, service charges and council tax, these charges can count as rent.[2]

Find out more about what rent covers.

When a landlord has increased the rent

A tenant might accrue arrears after a rent increase. The landlord must have followed the correct process to increase the rent for the additional rent to be lawfully due. For example, for most periodic assured or assured shorthold tenancies a landlord must use a section 13 notice.

Find out more about the process for rent increases.

Information about the landlord's identity

A written demand for the payment of rent or other sums due under the tenancy must contain the name and address of the landlord. Rent is not due if the landlord fails to follow this rule.[3]

Once the landlord complies, the tenant must pay all unpaid charges immediately.

Assignment or succession

The rent is not lawfully due if a predecessor in the tenancy incurred the arrears. For example, because there were arrears before the tenancy was assigned, or the tenant is a successor.

Find out more about liability for rent arrears after succession.

When a tenant has received a notice for rent arrears, they might be able to pay back some or all the arrears before the notice period expires or the day of the court hearing.

Where they cannot afford to pay the whole amount back at once, the tenant could agree a repayment plan with their landlord. This is a commitment to pay their full rent plus an affordable amount towards the arrears.

How making payments could prevent eviction

Paying off arrears or making a payment plan could encourage the landlord to stop further action, such as applying to court for possession.

The landlord cannot use mandatory ground 8 if the tenant reduces their arrears below the minimum sum before the day of the court hearing. For example, below two months' arrears if the tenant normally pays their rent monthly.

Where the landlord uses a discretionary ground, the court must consider whether it is reasonable to order possession. The court can take into account any steps the tenant has taken to try and clear the arrears and keep up with a payment plan.

When a landlord refuses to accept payments

Landlords might refuse to accept rent or repayments with the intention of establishing a ground for possession. Where the tenant offers rent but the landlord refuses it and proceeds to court the tenant has the defence of tender.

The tenant should keep offered rent aside and available to pay at the court hearing.

When the notice expires, the landlord can apply to the County Court for a possession order.

The landlord must complete and send the particulars of claim to the court, including details of rent and any steps taken to recover rent arrears. The court might strike out or adjourn the claim if the landlord fails to attach a rent schedule to the particulars of claim.[4]

The court usually sends the claim form and particulars of claim to the tenant at least 21 days before the hearing date.

Find out more about the possession proceedings process.

Defences against rent arrears grounds

A tenant who wants to defend the claim must file a defence within 14 days of receiving the claim form and particulars of claim.

The tenant might have a defence where:

• the rent claimed is not lawfully due

• the notice is invalid or the claim is defective

• the landlord has unlawfully discriminated against the tenant

• the landlord has refused to accept payments from the tenant

• there are public law grounds against a public authority landlord

Find out more about tenant defences.

Counterclaim to reduce arrears

A tenant might be able to reduce their arrears if they can prove the landlord owes them money. For example, the tenant could counterclaim if:

• the landlord has failed to carry out repairs

• the landlord has discriminated against them

• their private landlord did not comply with tenancy deposit protection rules

A counterclaim can prevent a ground 8 possession order if the amount awarded to the tenant reduces the arrears below the level required for ground 8.

Tenants should state on their defence form if they intend to rely on a counterclaim. If they are not successful, the court might order the tenant to pay the landlord's costs.

Legal aid for defending a claim or bringing a counterclaim

Defences to possession claims and counterclaims are in scope for legal aid.

If the tenant is eligible, they can get free legal advice and representation from a solicitor or specialist housing adviser.

Find out more about legal aid for housing issues.

The County Court sets a date for the possession hearing when it receives the claim form.

Attending the hearing

The tenant should attend the court hearing. This can help them avoid an outright possession order. The tenant can seek court duty advice, tell the judge about the situation, and ensure the court is aware of all the facts of the case.

The tenant should be prepared for the hearing and take any relevant documents with them. It can be helpful for tenants to be aware of the court process before they go on the day.

Find out more about what documents a tenant should take to court.

Court duty scheme advice

The Housing Loss Prevention Advice Service (HLPAS) provides court duty scheme advice and assistance for people with a possession hearing. An adviser provides legal advice to tenants and representation in the hearing. They can explain the terms of any order to the tenant afterwards.

The tenant should arrive at court in plenty of time to speak to the duty adviser, unless they have made other arrangements to be represented. They should find the court usher as soon as they arrive, give their name, and ask to see the duty adviser.

Advice and representation through the court duty scheme is free and not means tested. The adviser can apply for legal aid if the case needs more work after the hearing.

Find out more about legal aid for housing problems.

Landlord proceeds on mandatory ground 8

The tenant must tell the judge straight away if they have a defence to a mandatory ground. They can ask for an adjournment and permission for additional time to submit a written defence. This is at the discretion of the judge, but the request must be made before the mandatory ground can be proved.[5]

Where the tenant has reduced their arrears to below the minimum amount before the court hearing, the landlord cannot gain possession on ground 8. The landlord could use a discretionary ground if they included one on the notice.

Find out more about ground 8 possession.

Landlord proceeds on a discretionary ground

The judge must decide whether it is reasonable to make a possession order if the landlord proves a discretionary ground.

The judge can take into account anything relevant to the case, including:

• the tenant's payment record

• whether the tenant has taken steps to clear the arrears

• the cause of the rent arrears, such as an illness or job loss

• whether the tenant is expecting a payment of benefits towards the arrears

The judge should consider the impact of a possession order on the household, and any particularly vulnerabilities such as health, disability, or educational needs.

Where the landlord is a local authority or housing association, the court can consider whether the landlord followed the pre-action protocol.

The court can adjourn discretionary grounds claims to a fixed date if it needs more evidence or the parties need to file documents. The court could adjourn the claim indefinitely as long as the tenant keeps to terms, such as payment of rent plus an amount towards the arrears.[6]

After hearing from the landlord and tenant, the County Court decides whether the ground for possession is proved and makes an order.

Find out more about court orders at a possession hearing.

Outright possession order

Where the court is satisfied the mandatory ground is proved, it must make an outright order. This order gives a possession date no later than 14 days after making the order. The court can postpone possession for up to six weeks if the tenant would suffer exceptional hardship.

The court can make an outright order on a discretionary ground if it is satisfied the ground is proven and it is reasonable to make an outright order. The court can exercise its discretion in deciding when the order will take effect.

Suspended possession order on discretionary grounds

For claims on a discretionary ground, the court can suspend a possession order where it is satisfied the ground is proven and it is reasonable to order possession.

A suspended order means possession is suspended on the condition the tenant meets the terms of their tenancy and follows the terms the court imposes. For example, the tenant is expected to pay their full rent plus an agreed amount towards the arrears each month. The court must impose terms unless this would cause exceptional hardship.[7]

If the tenant breaches a term of a suspended possession order the landlord can apply to the court for a warrant of eviction.

Adjourn on terms

The judge can adjourn the claim on terms where it is brought on a discretionary ground. This means no possession order is made and allows the tenant to demonstrate they can keep to payment terms or other conditions.

The landlord can apply to reinstate the claim if the tenant fails to keep to the terms.

Adjourn to a fixed date

The judge can adjourn to allow more time to deal with the claim. This might allow the tenant to complete a benefits claim, get legal advice about their defence, or file a counterclaim.

For claims on mandatory ground 8, the court can adjourn in limited circumstances. Find out more about ground 8 possession.

Dismiss the claim

The court must dismiss the landlord's claim if they are not satisfied the ground for possession has been met. The court could decide the ground is not made out where the tenant has a defence to the claim, the landlord did not serve the notice correctly or landlord has not provided enough information to make a decision.

Cost order

The tenant is usually ordered to pay some or all of the landlord's costs if a possession order is made. The court can set terms for payments of the costs. Costs can include the court fee to issue the claim and the landlord's legal expenses.

Where the possession claim is dismissed, the tenant can ask the court to order that the landlord pays their legal costs.

Find out more about costs in possession cases.

Money judgment

Landlords can ask for a court order for money when they apply for possession. Outright and suspended possession orders can include a judgment for the amount of the arrears at the date of the court hearing.

Find out more about money judgments.

The landlord can apply to the court for a warrant of eviction if a tenant does not leave the property by the date on the possession order.

The warrant gives court bailiffs the authority to evict the tenant.

Suspend or stay a warrant

The court can suspend a warrant on the same terms as a suspended possession order, for example on payment of rent and arrears. A stay of execution delays enforcement, either to a fixed date or until a specified event has happened.

Where the possession order was made on mandatory ground 8, the court cannot suspend a warrant and can only delay execution up to 14 days after the date the possession order was made, or six weeks in cases of exceptional hardship.

Where the possession order was made on a discretionary ground, the court might agree to suspend or stay a warrant where the tenant can show they can keep up with a repayment plan for the arrears.

Find out more about the court's powers to suspend or stay a warrant.