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About Eamonn

Eamonn Hogan heads up the landlord & tenant team of a national law firm which helps landlords of all shapes and sizes.

Eamonn Hogan heads up the team based in Access Legal, the private client practice of national law firm Shoosmiths LLP. Eamonn's team have particular experience in advising landlords in disputes with tenants and Access legal was successful in the Court of Appeal case Johnson v Old (2013) relating to the meaning of the term ‘deposit’.

Eamonn Hogan, Solicitor

Recovering Rent Arrears

By Eamonn Hogan on 10/12/2014 with comments

We are not too far away from the perennial rent arrears season of January and February, exacerbated no doubt by the ‘financial blow out’ of the festive season. So it’s timely perhaps to look at how landlords should deal with rent arrears and what the various steps leading up to instructing a law firm to seek possession and recover arrears would be.

Rent arrears is a serious matter and requires immediate action but that doesn't necessarily mean 'going legal' right from the start,  even though you have the  right to do so.   It's always best to contact your tenant first to discuss the problem.  When reminded about a missed payment, most tenants will respond quickly and positively.

If your tenant is ordinarily reliable it may be that they have a temporary problem.  If you are prepared to stick with them and suggest ways round the difficulty it’s always worth exploring that approach.  A good tenant is worth hanging on to and if you help them through a sticky patch, they are likely to be a very grateful and therefore an even better tenant in future.

It's always wise to advise your tenant to seek assistance from bodies like the Citizens' Advice Bureaux or the local authority in connection with housing benefit which can still be paid directly into your account in specific circumstances.  You need to set out a written agreement with timescales for payments and back payment of arrears. This may include accepting smaller rent payments with increasingly additional amounts to pay off the arrears over a period, or the agreement to pay a lump sum at some future date to make up arrears. 

Although you may not expect this advice from a law firm, our experience here at Access Legal suggests that that avoiding litigation if at all possible and in some cases writing off small short-term losses and quickly moving on may be the best overall policy in the long run if you want to minimise your losses.  If your tenant is unable or unwilling to reach an agreement for payment, or the arrears are substantial, you can seek possession by serving a Section 8 Notice.  Possession notices should be served via recorded delivery and all tenants should be named in the notice. To be sure, you may wish to serve an individual notice to each tenant.

There are two procedures to regain possession of your property through the court. The first is the Accelerated Possession Procedure. This is designed to provide a quick solution for landlords who feel their best option is to regain possession of their property quickly so a new tenant can be installed.  You cannot claim for outstanding rent under the Accelerated Possession Procedure but you can recover your costs.

Alternatively, you can seek possession using a fixed date procedure, generally used when the total arrears are equal to at least two months’ rent.   In order to begin fixed date proceedings you must have already served a Section 8 Notice which has expired.

It is important that the landlord sticks to these procedures as any attempt to evict a tenant or recover arrears other than through these processes is a criminal offence and can lead to a penalty or a fine or up to two years in prison.  The landlord could also lay themselves open to a civil claim by the tenant for an injunction or damages which may be substantial.