A concern all landlords share is, what happens in the event tenants stop paying rent? This article sets out the processes involved and what to expect so you can be better prepared.
We take rent arrears very seriously.
Prevention is the best defence. We use robust referencing with Goodlord to find out as much as we can about tenants before any agreement is signed. We only look to find tenants with a history of good credit and sufficient income to afford the rent with low risk situations. However, referencing is no crystal ball, merely a snapshot in time showing a person's circumstances up to the point of referencing. It doesn't look to the future, and sometimes a tenant's circumstances can change and that's when paying the rent can start to be come an issue.
We have years of experience when it comes to chasing late rent payments and know what alarm bells to look out for. Generally tenants behaviour with rent arrears falls under certain categories:
- The proactive - these tenants are the best. They call ahead to explain they have a problem and apologise. We're aware of the situation and can prepare accordingly.
- The 'denier' - these tenants know they are in trouble but aren't going to be quite straight forward with you. They promise to pay you later in the week which is hit and miss.
- The 'go silent' - these tenants are the most difficult. They ignore all calls, text, emails, letters and pretend that if they ignore the situation, it will go away, which of course it won't.
- The 'attack is the best form of defence' - These tenants are quite rare but sometimes expect to get some form abuse born of of their frustration.
To resolve the situation successfully, there is a lot of time and skill needed to remain in contact regularly, without harassing, and showing empathy, yet being determined. A talented negotiator will make the best assessment which is why many landlords choose to (and should) have their property managed proffesionally.
However, whatever the response the tenant gives, the procedure is always follows several stages as dictated by what the Housing Act 1988 allows.
Stage 1: Communication (day 5 - 30)
We consider rent in arrears if it becomes more than 5 days late. We allow this period to account for funds to clear in the bank account, weekends and bank holidays. On the 5th day, tenants will expect to hear from us via email and text message explaining the rent is late and it may affect their tenancy.
In most cases, we hear back right away, but in any event, we'll continue to chase by letter and phone. If we don't hear back from the tenants, we will phone them periodically through this period until we get a response. It's important to consider that it's against the law to been seen to harass the tenant and so these calls, although very important, must be balanced.
Stage 2: Warning (day 30 - 60)
In almost all cases, rent would have been paid within the first 30 days of it being due. However beyond this, the matter is now very serious. At this point, we impress upon the tenant that if the situation isn't resolved by the 60 day mark from the arrears being due, then we would start a possession claim (if the rent is paid monthly - see below claim)
STAGE 3: Instruct SOLICITORS and issue section 8 notice (Day 60 - 74)
An important factor with rent arrears is getting your property back through what's known as 'possession''. It's important to get possession of your property as a priority because without it, the tenants may continue to rack up more arrears.
The only way you can get possession of a property is through mutual agreement with the tenant, or through a court order based on the correct notice being served on the tenant. In this case, if a landlord is going to be making a claim for possession of the property, they must use one or more of the grounds for possession under Schedule 2 of the Housing Act 1988, cited in a Section 8 notice seeking possession.
In the case of rent arrears, the most common grounds to rely on would be:
Ground 8 - Rent arrears are owed exceeding eight week (for weekly tenants) or two months (monthly tenants) or, for quarterly tenants, at least one quarter's rent is more than three months in arrears, and for yearly tenants, at least three months' rent is three months in arrears. The arrears need to exits at the date of service of the notice and at the date of the hearing
Ground 10 - Some rent is lawfully due from the tenant and is in arrears
Ground 11 - The tenant has persistently delayed paying rent which is lawfully due (NB) There do not have to be any arrears)
Once the Section 8 Notice has been completed, it is served on the tenant. They then have 14 days to either pay the arrears (although you could still move forward with possession claims on Grounds 10 and 11) or vacate the property, hand back the keys and voluntarily give possession back.
STAGE 4: SOLICITORS make court application for possession (DAY 74 - 134)
If the situation still hasn't been resolved by this point, and the tenant hasn't vacated the property, then the solicitor will apply to the courts. The courts will then respond with a date for the hearing which depends on how busy the court system is at the time of application. Typically its around 6-8 weeks. A judge will review the documentation and see if possession is warranted. If successful, the courts will give the tenants anywhere from 14 days to 30 days to vacate the property.
STAGE 5: wait for POSSESSION (DAY 134 - 164)
The tenant will receive a document from the courts by post explaining that possession of the property has been awarded to the landlord and they are expected to have vacated by the notice period given. If the tenant still haven't vacated by this point, we have to move to Stage 6.
STAGE 6: Apply for BAILIFFS to attend (DAY 164 - 224)
The solicitor will apply to the courts again to instruct bailiffs to attend the property and forcibly get possession of the property back. The time period for the bailiffs to attend depends largely on how busy the court system is at the time of application however it typically takes 3 - 8 weeks. They will send a notice to the tenants themselves a few days before they arrive explaining the procedure and what will happen. They will provide a time to attend and suggest a locksmith is present. They will then remove the tenants from the property if needed, however in all the cases we've dealt with, at this stage, the tenants have left on their own accord.
Claiming monies back
The process of possession, as you can see can take up to 6 months to arrange. During that time, considerable arrears may have stacked up which the tenant is still liable for. Claiming these monies back is beyond the remit of a letting agents and you would be best seeking advice from a solicitor.
While the situation of rent arrears is incredibly frustrating, it's important landlords / agents do not fall foul of the law. The Protection from Harassment Act 1977 protects tenants from inappropriate behaviour such as:
- changing the locks
- removing the tenants belongings
- the threat of violence
- cutting off of services