Help for Tenants faced with Eviction Proceedings
30 – 50 minutes to read
In this guide
Before you start:
Before reading this guide you should follow our guide to find out what occupation type you have.
1. Don't Panic!
It is very distressing to receive notice of court proceedings through the post and people often panic or perhaps bury their head in the sand and pretend it hasn’t happened.
However, it may not be as bad as you think:
- The paperwork you have received may be a notice rather than an actual court claim. Even if it is a court claim:
- Landlords frequently make mistakes when preparing their paperwork
- If so you may be able to get the claim thrown out or at least delay things
- You may have a defence to the claim
- Even if your landlord has got everything right and you have no defence, it will take months for the court order to be obtained – so you will have plenty of time to take advice and prepare for the worst
Don’t throw away any of the paperwork you received from the court. Keep it all. We will discuss what you should do with it later.
Don’t move out. Not yet anyway. Your landlord’s claim may be faulty in some way. We may be able to save your home. Read the rest of this article and see what your options are.
DON’T IGNORE IT. That is the surest way to lose your home. Read the papers, read this article, take advice if necessary. It may not be as bad as you think.
So let’s have a cup of tea, sit down and take a look at things.
Don’t be put off by the length of this article. Only parts of it will apply to you so there is no need to read it all.
The first thing to consider is ‘what actually have you received?’ Is it actual court proceedings or just a possession notice?
2. Possession Notices
Many people think that they are being evicted when all that has happened is that their landlord has served a possession notice on them.
If this is the first you have heard from your landlord about leaving, then the document you have received is probably a notice. So the message here is:
Don’t move out!
Often people assume that if they receive a possession notice from their landlord that they are obliged to leave. This is NOT SO.
Apart from a few exceptions (the most important being lodgers and people in holiday lets) it is illegal for your landlord to make you leave other than by obtaining a Court Order for Possession and then using either a County Court Bailiff or a High Court Enforcement Officer to physically evict you.
Until this happens you are legally entitled to stay. The law which provides for this is the Protection From Eviction Act 1977, and the only exceptions (lodgers etc) are set out in section 3A.
So if you have just been served a notice by your landlord this does not mean you have to leave by the expiry date in the notice. The significance of this date is that your landlord cannot issue court proceedings to evict you before that date has passed.
Many landlords serve notices but never go on to issue possession proceedings so do not assume that your landlord will.
However, a possession notice is a warning from your landlord that possession proceedings may happen so you need to take the notice seriously and ideally take advice.
There are basically three types of notice that you might receive:
- A section 21 notice (also known in England as Form 6A)
- A section 8 Notice, or
- A ‘Notice to Quit‘
Section 21 notices
The English form is form 6A but we call them section 21 notices as they are served under section 21 of the Housing Act 1988.
They are very common but are subject to a lot of complex rules and landlords often make mistakes. These are listed in our section below looking at section 21.
Section 8 notices
These are known as section 8 notices as they are served under section 8 of the Housing Act 1988. Like the Form 6A, they are a ‘prescribed form‘ and must contain all the proper wording. You can see what they should look like on this page (section 8 notices are Form 3).
They are also very common and are most often based on rent arrears. Find out more about this in our section on rent arrears claims below.
However, these notices can also be issued for one of many different reasons (all of which are listed in Schedule 2 of the Housing Act 1988). You can see what reason YOUR landlord has given in paragraphs 3 and 4 of the notice.
The notice period for section 8 notices varies depending on the reason why the notice has been served, but is often shorter than for a section 21 notice so do not delay in taking advice. For example, for notices served after 1 October 2021 based on rent arrears, the notice period is two weeks.
If the reason your landlord has served the notice is rent arrears, you should try to reduce your arrears as soon as possible. We discuss this in the rent arrears section below.
Notices to Quit
People often describe any notice asking them to leave as a ‘notice to quit‘ but for lawyers, a Notice to Quit is a separate and special type of notice.
Unlike section 21 and section 8 notices, a properly drafted Notice to Quit will actually end a tenancy. But only some types of tenancy and even then, only if it is a periodic tenancy. It can’t end a tenancy during the fixed term. And even if it does end the tenancy, you are still allowed to remain in the property by law (ie under the Protection from Eviction Act) until your landlord has obtained a possession order.
This type of notice is invalid if served on assured or an assured shorthold tenants. It can only be used for ‘common law‘ unregulated tenancies, and sometimes for protected tenancies.
We discuss both of these situations below. However, if you have a common law tenancy which is periodic, you may have little defence to a claim for possession claim based on a properly drafted Notice to Quit, so take advice quickly.
Notices to Quit are also used to end residential licenses, although as discussed below, you need to check as you may actually have a tenancy. In which case this notice will probably be invalid.
In the rest of this article, we will assume that the paperwork you have received is a claim for possession from the court.
3. Possession proceedings from the Court
If you are being evicted by your landlord there are two ways they can do this:
- By using the so-called ‘accelerated procedure‘ (so-called as it is not actually that quick), where the Judge will (normally) decide things on the paperwork alone, or
- Using the ‘standard‘ procedure where there will be a Court Hearing.
So let’s first work out which procedure your landlord is using.
Accelerated possession proceedings
Your landlord will have completed one form, form N5B – the top of the first page will probably look like this (there is also a Welsh language version):
You will also have been sent a defence form and a number of other bits and pieces from the court.
Standard possession proceedings
Here your landlord will have completed two forms –
The first will be a standard claim form which just gives details of the parties and says what sort of claim it is. The top part of this form will probably look like this (there are also Welsh language and large print versions):
The landlord will also have completed a ‘particulars of claim form‘, form N119 which will set out the details of their claim. The top of this should look like this (again there is also a Welsh language version):
Again, you will have been sent by the court a defence form along with some notes for defendants and some other paperwork.
Note that if your landlord is basing his claim on rent arrears, he may have issued proceedings online in which case the paperwork you receive may look slightly different. But it should say the same things!
So once you know what sort of claim you have received we can move to the next stage:
4. First things first
In the sections below we are going to see if you have a defence to your landlord’s possession claim.
However, before this, it is a good idea to get an idea of timescales. How long do you have?
If your landlord has issued accelerated proceedings
You should find a notice which tells you when you need to get your defence into the court.
Make a note of this date. If we find that you have a defence – it is important that you get your defence to the court before this date. Otherwise, the Judge may make a possession order and you will have to go to all the bother of applying to the court to get it set aside.
If your landlord has issued standard proceedings
The paperwork should tell you the date when the case review will take place.
Again, make a note of this date and make sure you are free on that day so you can attend.
Get your paperwork together
In particular, you will need to have your tenancy agreement. So if it is buried deep among your things, dig around until you find it. You will need it.
Gather together any other paperwork and records you may have about your tenancy. Then read and check over the guidance below carefully. If it looks as if you may have a defence, make a note of it.
So, let’s now proceed as follows.
5. What is the basis for your landlord's claim?
Your landlord can’t evict you just because he feels like it. There has to be a legal reason on which they will base their claim. We now have to work out what this is.
If your landlord is using the accelerated procedure we know what they will be basing their claim on. It will be based on the ‘no fault‘ ground under section 21 of the Housing Act 1988. Because the accelerated procedure can only be used for section 21 claims.
So jump down now to look at section 6 where we look at the things your landlord will need to prove if they are to succeed in their claim.
This procedure can be used for one or more of the many other legal grounds which landlords can use to base a possession claim, including section 21.
So let’s take a look at the forms and see what they say.
First, take a look at page 2 of the N5 claim form. That has a section where the landlord has to tick one of a number of different boxes.
Make a note of the boxes they have clicked and then take a look at the particulars of claim form.
Here the landlord will set out, in paragraph 4 on page 1, further details about the reason why they believe they are entitled to possession. You should also have a look at paragraph 3(a) – do you agree with the tenancy or occupation type they put here? Is the other information here correct?
Who has signed the Court Paperwork?
In law, only the landlord or their solicitor can sign court claims. However often the paperwork is signed by the letting agent.
If this has happened in your case you may have a defence.
Let’s now take a look at the different types of claim. Starting with claims under section 21.
6. Section 21 Claims
Many landlords seek to evict their tenants under the ‘no fault‘ section 21 ground. However it is not as easy to do this as most landlords think and lots of landlords make mistakes, often serious mistakes, which will give you a defence to the claim.
In fact, it is highly probable that YOUR landlord will have made a mistake!
Let’s now take a look at the things your landlord will need to prove if he is to succeed. These rules will apply irrespective of whether your landlord has used the accelerated or the standard procedure for their section 21 claim.
Your tenancy must be an Assured Shorthold Tenancy (AST)
Most tenancies are, but there is no harm in checking this. You can do this using our guide here.
If your tenancy is not an AST you will have a complete defence to the claim.
Your tenancy fixed term must have ended
This will normally be the case but, again, no harm in checking. Take a look at your tenancy agreement (or if you have several, the most recent one). It should say, probably towards the top, how long your tenancy fixed term is for (normally this is six months or a year).
If this period has not ended yet, then your landlord will have started proceedings too soon. So you will have a defence to the claim.
Note also that (in England) landlords must not serve their section 21 notice on you during the first four months of your initial tenancy. So if you first moved into the property on 1 January, they cannot serve a section 21 notice on you until 1 May. If they did – you will have a defence to the claim.
Your landlord must have served the proper form of notice on you
If you live in England, the top part of the form may look like this (note that this is the form used after 1 October 2021 – the earlier form had blue lettering):
This is a copy of the top part of the Government’s form. However, your landlord does not have to use the Governments form so long as the wording is the same (this is a prescribed form so all the proper wording needs to be there).
Check the wording under the heading – if there is a list of acts of Parliament, then this will be the old form which is invalid if served on or after 1 October 2021.
Depending on when the form was served, this may mean your landlord is using an out of date version of the form, which might give you a defence.
If you live in Wales, there is no prescribed form, so this will not apply to you.
Other things you need to look at are:
Has your landlord given the correct notice period?
In England, if this notice was served on or after 2 June 2021 and before 1 October 2021, the notice period should be 4 months. If it was served on you before then the notice period should be six months. For notices served on or after 1 October 2021 the notice period is two months.
If you are based in Wales, the notice period is six months.
When did you receive the notice? Check whether the expiry date of the notice is two (or four or six as appropriate) months from the date you received the notice.
This is particularly important if the notice was served by post. Often landlords will just give six months notice without allowing time for it to be delivered by the postal system. So check this carefully.
If the notice period you have actually had is less than the notice period you are entitled to – even if this is just by one day – the notice will be defective and you will have a defence.
How long ago was the notice served on you?
In England, there are now ‘use it or lose it‘ rules for landlords serving section 21 notices.
There have been a number of changes to this period under the coronavirus regulations but in essence, your landlord is supposed to start proceedings within four months from the date it was served. If it looks as if this is not the case, you may have a defence. You can check the precise notice periods with an adviser later (see below on this).
Did you pay a deposit?
If so your landlord must have protected it in a Government-authorised tenancy deposit scheme within 30 days of receipt of the money AND served ‘prescribed‘ information on you also within the 30-day limit.
For more information about this see our article on deposits here.
Note that this is not the same as the holding deposit you may have paid before you signed your tenancy agreement. Find out about holding deposits here. Unfortunately, though, failure to deal with a holding deposit properly will not form a defence to a section 21 claim.
Has your landlord or the letting agent charged you any fees?
Under the tenant fees legislation, if an unauthorised fee is charged and not refunded to you, no valid section 21 notice can be served. You can see our article on tenant fees here.
If unauthorised fees have been charged and not refunded you may have a defence.
Has your landlord given you the How to Rent Booklet?
This is supposed to be served on you at the start of the tenancy but if it is served later, the landlord can use section 21 so long as the booklet was served on you before your landlord served the section 21 notice.
You can find out more about the How to Rent Booklet on the gov.uk website here. If your landlord has never given it to you, you may have a defence.
Does your property need a license from the Council?
It is mostly HMOs (Houses in Multiple Occupations) that require licensing. An HMO is normally where three people who form two or more ‘households‘ (essentially family units) share living accommodation.
If you live in an HMO where there are five or more occupiers, then your landlord must get an HMO license from the Local Authority/Council. In some areas, your landlord may need to get a license where there are fewer than 5 people living in the HMO, and in some areas of the country, all properties need a license whether they are an HMO or not.
If you think your property may need a license you can find out more from your Council, who should also be able to let you know if your property has been properly licensed. Or not (in which case you may have a defence).
Has the Local Authority/Council served an Improvement Notice on your landlord?
An improvement notice is served, normally after tenants have complained to the Council about the poor condition of their property, on the property owner, ordering them to carry out specific improvement works.
The significance of this for you, is that landlords cannot serve a valid section 21 notice within six months of service of an improvement notice on them.
If you don’t know if an improvement notice has been served, you can speak to the Council about it, but this will normally only be if your property is in a shocking condition. If any improvement notice has been served within the past six months you may have a defence.
Did your landlord serve a Gas Safety Certificate on you before you moved in?
There has been some case law on this and if this interests you, there is an interview with one of the barristers in the case here.
All landlords are supposed to serve a Gas Safety Certificate (GSC) on tenants before they move in and if this was not done, you may have a defence.
Note that this will not apply if you moved in before 1 October 2015 and your tenancy has not been renewed since then.
Has your landlord served an Energy Performance Certificate on you?
This is supposed to be served on you before you move in, but the rules are not as strict as those for gas safety so your landlord may get away with serving it late – so long as it was served on you before the section 21 notice.
Again, this will not apply if you moved in before 1 October 2015 and your tenancy has not been renewed since then. Otherwise, you may have a defence.
Was the Court paperwork signed by someone other than your landlord or his solicitor?
As mentioned in section 5 above, if the court paperwork has been signed by someone unauthorised (for example often letting agents will sign) then you may have a defence to the claim.
Sorry, there are so many things to check!
If after you have checked them, you think that you may have a defence, you should speak to an adviser and, if they agree, put in a defence.
This is particularly important if your landlord has used the accelerated procedure as if you do not do this in good time the Judge may make a possession order. So don’t delay.
If it looks as if your landlord may have got things right (and check very carefully as a substantial proportion of landlords get it wrong), then you will have to accept that you will lose your home eventually. Although, you will usually still have several months to prepare for this.
Note by the way that if your landlord has used the accelerated procedure he will have been prompted by the form to check all the points above. However, this is not the case with the standard claim forms so there is a greater chance here that he will have missed something. So, if your landlord is bringing a section 21 claim via the standard procedure, check all the points above very carefully.
7. Rent Arrears Claims
If your landlord is looking to evict you under the standard procedure, in the vast majority of cases this will be because you are in arrears of rent.
We need to consider the following points:
- Is the arrears figure claimed by the landlord correct?
- Can you pay this, or
- Do you have a counterclaim?
If so you may have a defence to your landlords claim.
Is the arrears figure correct?
Your landlord should have served a schedule of arrears on you. Check this over carefully and see it it matches your records. If your landlord has not provided a schedule, ask for one. He will need to provide you with a schedule at some stage before the hearing.
Then, is the monthly rent given in your tenancy agreement different from the monthly (or weekly or whatever) rent given in paragraph 3(b) of the particulars of claim form? If so, and if the rent has been increased, was this done in the proper way?
See our article here which looks at the various ways rent can be increased.
If the landlord’s figures are correct and in particular if there is more than two months rent outstanding:
Can you pay off the arrears?
Or at least bring them down to under two months?
The significance of this being that if your arrears are under two months worth, the Judge at Court can allow you to stay in the property (so long as you take steps to pay the ongoing rent and clear the arrears). However, if your rent is more than two months worth, the Judge has no legal power to do anything but make a possession order.
In particular check over the first article very carefully. There are probably lots of places where you can apply for help which you have never thought of. Check them all out. Don’t be embarrassed. This is your home we are talking about here!
If you find this sort of thing difficult, see if you can get some help with your finances. For example, local Citizens Advice Bureaux are very good. There are other sources of help listed in this article in the getting help section at the end.
Do you have a counterclaim?
A counterclaim is where you bring a separate claim, as part of the proceedings, against your landlord. If you succeed, then any award made to you under your counterclaim will go to offset your rent arrears.
There are two main types of counterclaim that are brought in rent arrears claims:
- Claims for the penalty payment you can claim if your landlord has failed to comply with the tenancy deposit regulations (see our guide here). This can be for up to three times the deposit sum, although, the Judge may award you less.
- Claims for compensation if your property is in poor condition. You can find out more about your rights in this article.
We are not going to discuss the details of making a counterclaim here. If you think you have a claim, the best thing to do is to seek legal advice and get your legal adviser to help you with the paperwork.
Why you should always try to deal with rent arrears claims if you can
- If you lose the case, not only will you lose your home, you will also get a County Court Judgement (CCJ) registered against your name. This will affect your credit rating and make it more difficult to find somewhere else to live.
- If you want to be rehoused by the Council, they may say that as you have been evicted for rent arrears, this is your fault and refuse to rehouse you on that basis.
So you should always try to clear the arrears or reach an agreement with your landlord if you can. This article will help.
8. Claims against 'Licensees'
Sometimes your landlord will claim that you are not a tenant but a licensee. This is most common in HMOs, particularly if you are renting a room in a shared house.
Take a look at paragraph 3(a) of the N119 form. Does your landlord claim that you have a residential license?
If this is really the case, then you have considerably fewer rights than tenants, and if your license period has ended you may not have any defence to your landlords claim. Although, he should serve a Notice to Quit on you first.
We have an article here where we explain the difference between a tenancy and a residential license.
If you really are a licensee, there is not a lot you can do other than try to find somewhere else to live. However, many landlords issue ‘sham licenses’ as we explain in the article.
So if YOUR landlord has issued a sham license you will have a complete defence to their eviction claim.
9. Other types of claim
The vast majority of eviction claims are based on section 21 or rent arrears. So, the chances are that the proceedings brought against you are based on one of these.
However, there are lots of other types of claim that can be brought.
If your tenancy is an assured or an assured shorthold tenancy:
All the grounds for possession are listed in Schedule 2 of the Housing Act 1988. If your landlord has used any of the grounds in Part II (ie grounds 9 – 17 ) these are discretionary grounds – meaning that you may be able to persuade the Judge that it is not reasonable to make a possession order (even if your landlord is able to prove the ground), which would allow you to stay at the property.
So, always take legal advice. Your legal adviser will be able to tell you if a defence is possible and help you with the paperwork.
If your tenancy is a common law/unregulated tenancy
It may not be possible to successfully defend, particularly if your landlord is claiming after serving a Notice to Quit.
But take advice as they may have made a mistake.
If your tenancy is protected under the Rent Act 1977
You will almost certainly be able to defend the claim, unless you are in serious arrears of rent or possibly if your landlord is seeking to evict you because you have unreasonably refused to move to suitable alternative accommodation which they have offered you. Even in these two situations the Judge will be able to give you more time.
Whatever the basis of the claim you should always take legal advice. It is very hard and usually impossible to evict someone with a protected tenancy, so it is always worth seeking advice on your landlord’s claim. We have a detailed Premium Guide on protected tenancies here.
Note that sometimes landlords think, wrongly, that because they have been able to get their tenant to sign an assured shorthold tenancy form, this has changed their tenancy to an AST. This is NOT the case.
So take a look at paragraph 3(a) in the form and see what kind of tenancy YOUR landlord thinks you have. For example, if he thinks you have an AST which started on 20 July 1990 and you are able to prove that you were living in the property in 1988 – you will be able to defend the claim.
If you have a protected tenancy, nothing can take it away from you other than a court order, unless you move out permanently (which will end it). So, if you moved into your property before 15 January 1989 – ALWAYS take advice.
10. What next?
What you do next will depend on whether you have a defence or not.
If you think you have a defence
You should take legal advice as soon as possible from someone, preferably legally qualified, who understands housing work.
We make a number of suggestions in our Further Advice article here.
When you see your adviser
Make sure you show your adviser ALL the court paperwork, your tenancy agreement (or if you have more than one, all your tenancy agreements), and any notices and other paperwork served on your by your landlord and/or his solicitors. You should also have with you all correspondence and emails with the landlord, his agents and his solicitors, in case your adviser asks for them.
Remember, it is often the thing you leave at home which turns out to be the really important document you adviser needs to see!
If you are being evicted for rent arrears, or if you are on a very low income or benefit, it is also a good idea to have details of your income and outgoings with you to show your adviser if he asks for them.
So far as cost is concerned, many of the organisations listed in our article are free or low cost. If you are on benefit or a low income you may be eligible for Legal Aid. You can find out more about Legal Aid here.
You will normally also be able to get help if your court has a duty solicitor service. However, this will normally only be available to you on the day of the hearing. If at all possible it is best to get help before then. There is also a Court Mediation Pilot which you can read about here.
If you don’t have a defence
You should concentrate on finding somewhere to move to so you are not made homeless.
If you think you are eligible for Local Authority housing, take a look at our article here.
Don’t give in, there is normally something you can do. And Good Luck!
This is the end of this article.
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