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Tenant defencesThe following are the most common defences 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 arears 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 my adjourn proceedings to give the tenant extra time to resolve ay housing benefit problems.
- If the claim for possession is following service of a Section 21 Notice the following defences 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 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.
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Tenants Repairs ResponsibilityA tenancy agreement may require that the tenant is required to keep the property in a good state of repair and be responsible for putting right any damage that they have cased to the property including putting the property back to the state it was in at the start of the rental period. The tenancy deposit will face deductions at the end of the period to rectify any defects that should have been corrected by the tenant.
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Termination of a Rent Act Tenancy by a LandlordTermination of a Rent Act Tenancy by a Landlord
Protected Tenancy
The tenancy agreement gives the terms under which a landlord may end a protected tenancy.
The following methods can be used to end a tenancy:
End of the fixed term tenancy.
Landlord serves Notice to Quit.
Surrender –operation of the law or express agreement.
Notice of an increase in rent is served.
Statutory Tenancy
Only when the contractual tenancy ends is the landlord entitled to possession by serving a Notice to Quit.
The landlord is required to issue a claim for possession at court and also satisfy the court that there has been breach of the Grounds of the tenancy by the tenant and a result they are entitled to possession.
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Termination of a Secure Tenancy by the TenantA tenant can end a tenancy by:
- Serving a Notice to Quit
- Surrendering the tenancy
Termination by the Landlord
- A landlord must obtain a Court order and serve the appropriate notice:
- A Notice to Quit
- Section 8 Notice of Seeking Possession
- Obtain a demotion order under Section 82A Housing Act 1985. (A demoted tenancy is one which is issued by order of a Court and last for one year unless extended to 18 months. The secure tenancy will be replaced with a less secure demoted tenancy by order of the Court).
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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.
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TrespassTrespass to Property
- A tenant has the right of possession to the property to the exclusion of all others. Therefore, if someone including the landlord enters the property without the tenant’s permission they are committing an offence of trespass.
Trespass to goods
- Trespass to goods relates to any interference or damage to a tenant’s belongings. If this occurs, a tenant is entitled to claim for trespass to goods against the landlord. Evidence will need to be produced such as receipts and proof of damage.
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Useful lettings contactsThe Association of Residential Letting Agents(ARLA)
The organisation responsible for regulating the professional membership of letting agents in the UK.
Details:
Tel: 0844 387 0555
Website: www.arla.co.uk
Address: Arbon House 6 Tournament Court, Edgehill Drive, Warwick, Warwichshire CV34 6LG
The National Approved Lettings Scheme (NALS)
They handle complaints procedures and act as mediators between tenants and landlords. NALS is an accredited scheme which protects the interests of both landlords and their tenants.
The UK Association of Letting Agents (UKALA)
UKALA represents the interests of letting and management agents in the United Kingdom, whilst also safeguarding the interests of both landlords and tenants.
Details:
Tel: 02078207900
Website: www.ukala.org.uk
Email: info@ukala.org.uk
Address: UKALA 2rd Floor, 200 Union Street, London SE1 0LX
The National Landlords Association (NLA)
The NLA is one of the leading associations providing help and advice for its membership of private residential landlords in the United Kingdom.
Details:
Tel: 0207 840 8900
Website: www.landlords.org.uk
Email: info@landlords.org.uk
The Deposit Protection Service (DPS)
The DPS offers both custodial and insured schemes to protect the deposits of tenants and is backed by the British Government.
Details:
tel:0330 303 0030
Website: www.depositprotection.com
The Dispute Services (TDS)
This service encompasses both My Deposit and the Tenancy Deposit Scheme which are both operated under the umbrella of the TDS. This service allows both insured schemes to hold deposits of tenants with attached insurance policies to protect the money.
Details:
Tel: 0333 321 9401
Websites: www.mydeposits.co.uk
Capita Tenancy Deposit Protection (CTDP)
The Tenancy Deposit Scheme for landlords, agencies and tenants helps them to safeguard their deposits.
Details:
Tel: 0844 412 9968
Website: www.capita-tdp.co.uk
Email: info@capita-tdp.co.uk
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Warrant of EvictionIf the tenant is still in the property once the date for possession on the possession order has passed the landlord is entitled to make an application for a warrant of eviction. Once this has been filed the Court will issue a warrant to the tenant giving the date and time that the court bailiff will attend to execute the warrant.
The bailiffs have the right, using reasonable force to remove anyone who still occupies the property. A locksmith maybe employed by the landlord to change the locks to prevent re-occupation following the eviction. The landlord is not permitted to endeavour to remove any tenant until instruction have been issued for bailiffs to attend the property.
The bailiff’s attendance date is the last date that the tenant is permitted to remain in the property. The tenant should attend the local authority accommodation office if a new property has not been found by this date to make a homeless application. The application will assessed for qualification for advice of accommodation assistance.
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What is Housing Benefit?
Housing Benefit offers assistance towards paying all or part of the rent of tenants on low incomes or who are in receipt of benefits. Claims should be made at a local authorities’ offices on the appropriate benefit application form.
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What makes a Section 21 Notice Invalid?If the notice has been completed incorrectly it will be invalid and give the tenant a Technical Defence to the claim for possession.
If the facts of the case mean that the notice is invalid this will give the tenant a Substantive Defence to the claim for possession.
Technical Defences
A Section 21 (1) (b) Notice has been served and possession proceeding issued in court during the first six months of a tenancy.
A Section 21 (1) (b) Notice has been served and possession proceeding issued in court before th fixed term of the tenancy has ended.
A Section 21 (1) (b) Notice or a Section 21 (4) (a) Notice has been served that does not give at least two months written notice that the landlord requires possession.
A Section 21 (1) (b) Notice or a Section 21 (4) (a) Notice has been served and possession proceedings have been issued before the notice has expired.
A Section 21 (4) (a) Notice has been served and the expiry date is not the last date of the tenancy period and a saving clause has not been included in the Notice.
Substantive Defences
The property qualifies as a house of Multiple Occupation and the landlord does not have a licence for the property in accordance with Section 98 Housing Act 2004.
The tenancy deposit paid by the tenant to the landlord has not been paid into one of the authorised tenancy deposit schemes according to Section 212-215 Housing Act 2004.
To ensure validation of a Section 21 Notice a tenant should instruct a solicitor or other housing law professional to inspect the notice.
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