Housing law is a minefield for the unwary and ill-advised action can cost a great deal of money and time. GCA’s housing law specialist will provide you with fast and accurate advice relating to your legal position as landlord, tenant or mortgage holder.
If your tenant is not paying rent or if your landlord has served a notice seeking possession, we will guide you though the practical steps you need to take to resolve the problem.
We also offer advice and assistance in relation to public sector tenancies, with a District or Borough Council, or with housing associations
We hold a franchise from the Community Services Commission in the category of housing. This assures you that we are entitled to deliver publicly funded advice, assistance and representation (subject to your financial eligibility and an assessment of your case).
The courts like to know what steps have been taken to find out why there are arrears, and if the tenant has any proposals to pay the rent on a regular basis.
If the tenancy is a Secured one with the Council, or an Assured one with a Housing Association, this forms part of a pre-action protocol which should be followed by the Landlord. If it is not, or details of what has been done are not given to the court at the beginning of the case, the court can delay the case or dismiss the claim.
If there are more than two months of arrears at the time of any notice and at the time of the final hearing, the court must make a possession order, unless this is excluded by the tenancy agreement.
The Landlord will then be able to issue a warrant for possession, and the Court Bailiff will send an eviction date. Sometimes the court will suspend this - for example, if the tenant has satisfactory proposals to pay - but the tenant must apply to the court if they want a suspension of a warrant for possession.
If a mortgage is not paid and there are two months of arrears, the lender can take court proceedings for possession of the borrower’s home. Again the courts will want to know what the lender has done to find out why the mortgage is not being paid, and if any agreements can be reached to pay the mortgage when it falls due and a sum off the arrears. If that cannot be effected, the court might give time for the property to be sold by the owner.
The courts can only help a borrower if the latter's proposals mean that the arrears will be cleared in a reasonable time, or that the lender will get all of their money in a reasonable time. What is a 'reasonable time' is judged against how long the mortgage has to run.
If the mortgage cannot be paid and a possession order has been made, once the time for possession has passed the lender can apply for an eviction date. Again, the borrower can apply to the court to suspend, and the court may do so if the borrower makes satisfactory proposals to clear the arrears, pay the instalments, or has further information as to the sale of the property.
Nuisance and anti-social behaviour
Other possession actions arise which do not concern rent or mortgage payments. The most common is where a private letting has passed the fixed term, or has lasted longer than six months. Provided the Landlord serves the right notice and takes court proceedings at the right time, the courts can order possession without a hearing. Once a possession order is made the landlord can then ask for an eviction date. The court can only put back the date when possession has to be given by 42 days in cases of exceptional hardship.
If the terms of a tenancy agreement are not kept in other ways, the landlord can also take possession proceedings. These may concern anti-social behaviour or nuisance. This may range from playing loud music to serious assaults on a neighbour, which if it leads to a criminal conviction will leave the court with no option but to make a possession order.
The courts can also make anti-social behaviour injunction orders which, if broken can lead to a line or a period of imprisonment or demotion orders, if the tenant has an assured or secure tenancy with a housing association or local council. This means that the tenant loses their security for a year and other rights under the tenancy, but if they avoid any further problems they get back their security of tenure at the end of the term of demotion.
If the tenant shows that they understand that the bad behaviour complained of - whether their own or concerning people they have either let into their home or who live with them - the courts can postpone a possession order, as long as the terms of the tenancy are kept to.
Breach of covenant
Other breaches of tenancy can also lead to possessions proceedings - for example, sub-letting without permission and carrying out work on the property without permission from the landlord. Consequently it is always important to understand the terms of the tenancy and to keep to those.
These are breaches of the ‘covenants of the tenancy’, whether set out in the written tenancy or implied by law. The most important of these for a tenant is the covenant for quiet enjoyment.
If a landlord trespasses or enters into the premises without the permission of the tenant, or otherwise without reasonable prior notice, there will be a breach of covenant, as there will be if the landlord tries to take away any part of the premises or the rights that go with it.
A tenant who wants to stop this may need an injunction order from the court. Such orders can require a landlord to do something, such as letting a tenant back into the premises, or to stop doing something, but in either case they are enforced as orders of the court. Damages can also be claimed.
Another important term of the tenancy is implied by law - that the Landlord keeps the premises and their installations in repair. If a Landlord has notice of these in writing and fails to carry out the repairs within a reasonable time, the tenant has the right to claim for damages or disrepair, or set off the cost of doing the repairs, if so advised, against the rent..
Trespass and assault
Sometimes Landlords take possession of the premises illegally. This happens when the Landlord does not serve a notice ending the tenancy, as required by law, and fails to go to court to get a court order for possession followed by the Court Bailiff attending at the property, and to the eviction in accordance with the law.
If the Landlord enters the premises without permission from the tenant or by court order, it is a trespass. If the tenant is put in fear of assault or is assaulted, damages can be claimed as part of or in addition to a claim for damages for unlawful eviction. This can happen if the Landlord changes the locks to prevent the tenant getting back in, or where the tenant is physically put out on the street.
The Housing Authority (usually the local council) will have a duty to accept a homelessness application from someone who is eligible for assistance, and must provide accommodation to an applicant pending a decision on their application.
If they are in priority need and not intentionally homeless they will be given temporary housing until such time as the duty is discharged, usually by an offer of permanent housing.
If a council refuses an application on a homeless basis, their decision can be appealed in writing to the panel or reviewing officer within 21 days of receipt of the written decision. The same strict time limit applies to an appeal to the County court for a further review of the decision.
If an applicant causes their own homelessness - for example by not paying rent when it was affordable or by behaving badly - the Housing Authority need only give advice and assistance; they may provide temporary accommodation but do not have to, unless the duty is enhanced because the applicant is in priority need and has children or is disabled.
When an applicant for housing to a housing authority is given a property this is called an allocation. It should be done according to the Housing Authority’s Allocation Policy, and if it is not then the decision may be reviewed by the courts. If a person is dissatisfied with the property allocated, the decision can be taken to an allocation panel.
An Allocations policy may itself be the subject of a review, if it is thought that it does not satisfy the set criteria for such policies.
There are many pitfalls for the unwary, and if in doubt, whether as a landlord, lender, or as a borrower or tenant the best policy is to seek advice in a timely way. The purpose of this is to be better informed, as to what further action may be required of you or on your behalf so that your interests may be protected or advanced.