About Rent Arrears & Evictions

Types of Court Proceedings

There are two types of court proceedings which are the most commonly used when looking to remove tenants from a property due to rent arrears.

1. The Accelerated Possession Procedure (Section 21) which can only be used where:
An assured shorthold tenancy (AST) is in placeThere is a written tenancy agreement in placeA valid Section 21 notice has been correctly served on the tenantThe Section 21 notice must have expiredIf a deposit has been taken it has been registered correctly

If you have all of the above then you can apply for accelerated possession proceedings and if successful you will be granted an order for possession and an order that the tenant pays fixed costs.

2. The Normal Possession Proceeding (or 'fixed date') Rent Arrears Ground (Section 8) which can only be used where:
 There is two full months of rent arrears or more owed Section 8 notice has been correctly served on the tenantThe Section 8 notice has expired

If all of the above apply you should get an order for possession, a money judgement for the rent arrears due at the end of the court hearing, an order for the tenant to pay 'occupational rent' which is also known as 'mesne profits' and an order that the tenant pays your legal costs which the judge will assess at the hearing.

However, you should know a hearing will be scheduled which must be attended by you or your agent along with your legal representitive (if you choose to use a legal representitive) to give evidence on the rent due. The tenant can put in a defence and counterclaim for compensation on the basis the property is in poor repair. This can make the process very long and drawn out and expensive.

These proceedings do not guarantee possession of the property.

How do I decide which route to take?

This is very much dependant on what is the most important to you and the likelyhood the tenant has the means to repay any arrears.

Some points to take into consideration when making your decision:
If you have all your paperwork correct and in order then you cannot be prevented from obtaining possession under the accelerated proceedings Section 21 route.
If you choose accelerated proceedings you cannot claim rent arrears with a money judgement.
If the tenant pays you the rent before the hearing date by their own means or by the housing benefit office you will not be able to obtain an order via the 'fixed date Section 8' route. This is good news if you just want the rent paying and are happy for them to stay. But, if you want them to go this can be frustrating.
If the tenant is not working it is difficult if not impossible to enforce the money order. However,
  if they are working and you are certain they will continue this employment after eviction then
  this would be a good reason to choose the 'Section 8 fixed date' procedure and then apply for
  an attachment of earnings order.
If getting possession of the property is more important than recovering the rent, you might wish to choose the Accelerated Procedure (Section 21). This is a guaranteed possession.
You will have to use the 'fixed date' procedure if the tenant has stopped paying rent very early on in the new tenancy and therefore still has many months of the tenancy left. Otherwise your financial loss could be high.
If you feel your tenant could raise a defence and counterclaim for compensation on the basis the property is in poor repair the accelerated procedure may be a better option as this cannot be challenged.