- December 9, 2011
- By Andrew Brookes
- 0 comments
The most common ground for bringing possession proceedings is that there are rent arrears owing. A court will look at the circumstances of the case and decide whether it is reasonable to make a possession order. This largely depends on the payment history and the likelihood of the arrears being cleared in the near future. Arrears can be high and a tenant may only be able to afford to pay small amounts per week towards the arrears. This means that it can take months or even years to clear the arrears. To illustrate this it would take a tenant paying £5.00 per week 1 year to clear £260.00 of arrears and nearly 4 years to clear £1000.00. Often there have been housing benefits problems and even where benefit has been clawed back it may not necessarily wipe out all of the arrears and the tenant will be left paying the remaining arrears.
If a postponed possession order is made the tenant is closer to eviction and any default on their agreed payments puts them at risk of the landlord applying for a date for possession. Historically a suspended possession order was made and breach of the payment terms meant that a warrant for eviction could be obtained. Over a period of years there could be several warrants issued and stays made before the arrears were cleared. Since it can be a lengthy process to clear the arrears this can place the tenant in an unpleasant situation for some time because they are on pain of further court action being taken by the landlord to evict them.
Whatever the reason may be for non payment of rent it is clearly a breach of the tenancy conditions to fall into arrears. However, in some cases it is clear that the landlord has also breached the tenancy conditions by failing to comply with their repairing obligations. Tenants have often complained of disrepair for some time and have disrepair claims but are put off from taking any legal action because they feel that they are in trouble already because they owe rent and do not want to antagonise the council further.
A landlord will always have the minimum statutory obligation to repair the structure, the exterior and the installations for gas, mains and water. The tenancy agreement may state that the landlords’ obligations go beyond this basic requirement or that the landlord is obliged to repair to a higher standard than required by statute.
Where a tenant has had possession proceedings brought against them they can counter claim in those proceedings for the disrepair and seek an injunction for the repair works and compensation for the inconvenience caused by the disrepair. There is no requirement to follow the housing disrepair protocol in counterclaims and so this can speed up the process of obtaining an injunction. It is also easier to meet the criteria for public funding because the tenant is at threat of losing their home.
If the disrepair has gone on for some time the tenant will be entitled to substantial compensation. Any compensation received will be net of arrears because there will be a set off of compensation against any existing arrears. Often this can be enough to clear the arrears in their entirety leaving no ground for possession remaining. If the tenant succeeds on the disrepair claim and the arrears are cleared the possession claim will be dismissed and the claim is gone completely. This means that the landlord would have to start all over again with a new claim if further arrears accrued.
A court will still expect to see efforts made to clear the arrears and not a total reliance on likely compensation from the disrepair claim. However, the proceedings will last several months and this gives a tenant opportunity to make payments and show the court that they are committed to reducing the arrears. At the same time the tenant can obtain a remedy on the same proceedings for the ongoing disrepair and both claims are disposed of together.