Understanding Rent Arrears

By Momtaz Islam, Solicitor of Senior Courts of England and Wales

Possession proceedings due to rent arrears have become increasingly common. A recent study revealed that 85% of landlords have reported higher rent arrears among their tenants, highlighting a local issue that mirrors a broader debt problem. This article delves into the common causes of rent arrears, the grounds for eviction, and potential defences for tenants.

Common Factors Causing Rent Arrears

Overpayments: When housing benefits or universal credit have been overpaid, future benefits may be reduced to recover the overpaid amount. This can occur if a claimant fails to notify authorities of a change in circumstances requiring a new claim.


Non-dependents in the Household: Rent arrears can arise when other adults in the household do not contribute as expected or fail to provide enough information to determine their contribution.


Sanctions: Increasing sanctions for breaches of welfare benefit conditions, such as missing Jobcentre appointments or not actively seeking employment, can lead to the non-payment of housing benefits and universal credit.


Rent Increases: Local authorities can increase rent for secure (council) tenants through provisions in tenancy agreements or by serving a notice of variation. Tenants can challenge rent increases on public law grounds. For assured tenants (housing associations and private tenants), Section 13 of the Housing Act 1988 provides some control over rent increases, allowing tenants to request a review by the First Tier Tribunal.


Grounds for Possession

There are two types of grounds for possession: mandatory and discretionary.

Mandatory Grounds require a judge to order the tenant to leave the property if the landlord can prove the grounds, resulting in an outright possession order. For example, Ground 8 requires that at least 8 weeks’ rent (weekly tenancies) or two months’ rent (monthly tenancies) is in arrears when the notice seeking possession is served and at the hearing date. If Ground 8 is proven, the court must make an outright possession order, usually within 14 days, extendable up to 6 weeks in cases of exceptional hardship. Ground 8 does not apply to secure (council) tenants.


Discretionary Grounds: These allow a judge to decide whether to order the tenant to leave based on the reasonableness of the situation. For secure and assured tenants, a discretionary ground for possession exists where rent lawfully due has not been paid. The landlord must prove that the rent is lawfully due and that there have been persistent delays in payment.

Defences and Counterclaims

Tenants can raise various defences and counterclaims in possession proceedings:

Lawfully Due Rent: Tenants can challenge the lawfulness of the rent claimed remarkably if the landlord does not follow proper procedures for rent increases. This can reduce or eliminate the total arrears if the rise was unlawful.


Set-off: Tenants may acknowledge rent owed but claim the right to set off an amount due from the landlord to the tenant, often due to the landlord’s breach of obligation.


Disrepair Counterclaim: Tenants can counterclaim based on disrepair if:
The disrepair is the landlord’s responsibility.
The landlord had notice of the need for repairs and failed to act within a reasonable period.
The tenant suffered loss and inconvenience due to the disrepair.


The court may still order possession if the assessed damages do not extinguish the arrears. Until proceedings are resolved, tenants should continue to pay rent plus a sum towards the arrears.


How We Can Help

Contact us immediately if you have received an eviction notice or a discretionary possession order. We offer support with:

Eviction Notices: Guiding you through your rights and the steps to challenge eviction.
Discretionary Possession Orders: Providing legal support and representation to set aside the order.


For the best assistance and support, please reach out to us promptly.

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