Eviction is never something to be taken lightly and in these unique times, where many people are, through no fault of their own, struggling financially, it is especially important that no stone is left unturned to avoid an eviction scenario. The Government has recognised this and, whatever the circumstances surrounding the possibility of eviction, you as a landlord must follow and adhere to a set of procedures. This has now been set down in specific practice guidelines and failure to follow the right process before taking action to evict a tenant could mean your legal application is rejected. Obviously, the hope is that your tenant will adhere to the terms of their rental agreement and pay rent on time but if their circumstances have changed and they are no longer able to do this, working together with you as landlord before things reach eviction stage is the best way forward. This is known as a pre-eviction plan.
In this article, we look at pre-eviction protocols and the rules surrounding the process to be followed before taking legal action to enforce an eviction from a property.
What Is A Pre-Eviction Plan and Protocol?
A pre-eviction protocol is a plan that outlines the stages expected to be undertaken by both a tenant and a landlord prior to any legal proceedings to gain possession of a rented property. These are laid down in practice guidance 55c and these are currently the temporary arrangements set to deal with the unusual coronavirus pandemic circumstances and will run until the 30th of November 2021.
What needs to be done?
First and foremost, the two parties need to communicate with each other and try to understand the situation and implications. Why is the tenant in arears? How much has been directly caused by the coronavirus restrictions? What repayment plan can be agreed? Put simply, both parties must document and prove that they have done everything they can to understand the situation, be sensitive to it and come to an arrangement which avoids eviction whilst sorting out arrears.
A landlord must make documented enquiries as to the status of the tenant, to ascertain if they are classed as vulnerable under the Coronavirus legislation. If they are, then the landlord must take guidance and advice from the local authority housing team as to how to deal with this.
Landlords are obliged to give a struggling tenant details of support networks such as the citizens advice bureau or the local housing authority who might be able to help with discretionary housing payments. This needs to be documented and the landlord needs to give the tenant space to contact these services for assistance.
Both parties should document that they have tried to agree an affordable repayment plan. A landlord should not unreasonably refuse a sensible repayment plan.
Landlords should keep clear rent statements for at least 3 months before action which show any rent deferrals or rent reductions to help the tenant. This is to show the court that they have attempted to reduce or defer payments to help the tenant.
Landlords and tenants should discuss allowing the landlord to have direct payment of any housing element in benefit payments or even an agreed reduction in benefits to pay to the landlord for rent arrears. It has to be noted that this is calculated automatically by the authority so there is no room for negotiation.
If there is a rent guarantor, they need to be involved early on in any discussions to see how they can assist with the rent arrears.
If, after all this effort, no agreement can be made then both parties should try mediation and have a professional mediator try to broker an agreement.
Perhaps as important as all these steps, the landlord has to document every communication and every step taken to avoid court action. All of this will need to be provided to the court as evidence that everything had been done to avoid legal action. The law is very clear currently, that every effort must be made to avoid legal proceedings to enforce an eviction and failure to follow the guidance will lead to delays in an application being processed or even an application for possession being rejected. It is, though, in everyone’s interests to look after each other and work together to come to an agreement, wherever that is possible.