Tenant Not Paying Rent And Won’t Leave?
If your tenant isn’t paying the rent and won’t leave you need to protect your interests by applying to court for a possession order as soon as you can.
If you don’t, the arrears will just continue to build up.
This is the worst type of tenant from a landlord’s perspective, and they probably know that you can’t do anything about the situation until you have a possession order.
Don’t be fooled by a tenant who tries to convince you to delay taking action.
They know what they’re doing.
Fortunately, you have two options (arguably three as we’ll see).
***PLEASE NOTE*** Temporary legislation is in place during the COVID-19 pandemic which may affect the ability to use one or more of the options below and/or the notice periods that you are required to use.
First Option – You Don’t Care About The Arrears
If you’re not bothered about the rent arrears, and just want them out, using the “accelerated section 21 procedure” is probably your best bet, provided it’s available to you.
This involves serving a section 21 notice to give the tenant two months to vacate, after which time you can apply to court for a possession order.
If you don’t plan to claim the arrears, once your section 21 notice has expired you have the option to use what is known as the accelerated procedure to obtain a possession order.
This procedure is purely paper-based, meaning that you don’t have to attend court.
You just have to submit the correct application and make sure that all of your paperwork is in order.
If it is the court should approve it and you’ll get your order.
This is the quickest and cheapest option, and the least adversarial.
First Option – You Do Care About The Arrears
If you do care about the rent arrears, then the “standard procedure” might be more suitable for you.
If you serve a section 21 notice and the tenant won’t leave by expiry, instead of using the accelerated procedure you can use the standard procedure to apply to court for a possession order plus an order that the tenant pays the rent arrears (essentially a money judgment).
You can’t do this with the accelerated procedure, which is for possession orders only.
If you use the standard procedure this will require a court hearing before a judge and you will need to appoint an advocate to represent you.
It’s more expensive that the accelerated procedure and takes longer given that you have to wait for a hearing date to be confirmed.
But if recovering the rent arrears means that much to you this is your best option.
The second option is your only option (other than waiting) if the section 21 procedure is not available to you – for example where you are nowhere near the expiry date of the tenancy agreement.
This second option involves serving a section 8 notice which is used to put the tenant on notice of its breach of the tenancy agreement (i.e. the failure to pay the rent) and that you require the breach to be put right (i.e. the rent paid) within two weeks, failing which you’ll apply to court for a possession order.
The benefit of this option is that you only need to give the tenant two weeks’ notice before you can apply to court.
A further benefit is that your application can include both a claim for possession and a claim for the rent arrears.
The downside, as with the standard procedure referred to above, is that it will require a court hearing.
A further issue is that you can get all the way to court only for the tenant to pay off some of the arrears beforehand, usually just enough (there is a threshold), which will prevent the judge from granting the possession order. Meaning that you’re stuck with them.
What To Do?
It really comes down to making a commercial decision.
If spending more time and money trying to recover the rent from a bad tenant seems worth it to you (perhaps the arrears are considerable) then applying for a possession order to get them out, as well as for a debt judgement for them to repay you, might be preferable.
If however you just want them out then the accelerated procedure is your best bet.
Given that it doesn’t require the tenant to be in default in any way, just that your paperwork is in order, in many cases you would be well advised to wait and use this procedure when the right to do so arises, rather than steaming in with an application that will require you to attend court.
If Your Tenant Isn’t Paying Rent And Won’t Leave…
…get in touch.!
I deal with these applications for landlords all the time.
Give me a call if you’d like a hand with this. I’d be happy to have a chat about it with you.
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