Defending Section 8

[peeta]

Hi,

Hope everyone is well. Just need some advice/your thoughts on this matter below:

Context:
1) I am on AST in England and like many people due to Covid got into rent arrears in 2020.
2) But, communicated to estate agent and agreed a payment plan and sticking by it since then.
3) Despite that, LL served me section 8 in April 2021, when asked I was told that was to 'cover their backs'
4) Payment plan continued to be adhered to and in July 2021, without any indication another section 8 was served which I understand because of rule change with notice period (same grounds 8. 10 and 11)
5) Aug 2021, agent ask for a revised payment plan as LL wanted rent to clear quickly - so we gave another plan which was accepted.
6) We continued to stick to it, until we slipped up in April due to some unfortunate event - but we communicated that promptly and made up for that in the next months.
7) But, LL in May 2022 has taken legal action on the basis of section 8 served in July 2021.
8) Courts have just sent me the defense papers and notice of hearing which is at the end of this month.

The outstanding arrears as of now are still more than two months rent (around 5k) - so my questions are as follows.

Questions (technical):
a) I take section 8 notices have 1 year validity, but when they were served in July 2021, the same ground of 8, 10 and 11 were used. I can admit ground 8, but discretionay grounds 11 may not apply. or is it just that by virtue of 8, at all times both 10 and 11 also applies? (Pls note, by then I have also been keeping up with the payment plan)
b) In the possession clai, they seem to rely on a notice served on a different date (two days after the section 8 was served) - does this make the claim invalid or it is just a clerical mistake? I was going to argue since several section 8 notices were served, I am not sure what the notice on that wrong date says as I had not received it. is this credible?
c) Since the start of the tenancy, the agents changed one party to another and the PI served for deposit protection has the address of the previous agent (but the landlord name is correct and it has not changed) - does this give rise to any counterclaim as new PI with new address of the new agent was never served?

Questions (General):
c) I am happy to pay-off the arrears, but I do not want any order made against me as I never had any in my life. What options do I have to get this claim dismissed or dropped?
d) if an order is made against me, even a suspended one, will I need to pay the legal costs of the LL - which is around £500 ? how can I avoid that as I really do not want to pay extra ?
e) I am happy to bring the arrears below 2 months rent by the time of hearing - would that mean ground 8 is automatically dismissed? (I will argue against 10 and 11 as apart of one mishap I have been paying additional amount towards arrears on top of normal rent)
f) I had a massive row with the agent for failing to do repair - can I use that as a defence as it could also well be revenge eviction?
g) Also, as part of the row, I asked the agents to reveal the name and contact of the LL as I wanted to talk with them directly, but I was only given a company name and no details of representatives - I think this is a legal breach, can I use in anyway to counterclaim?


I look forward for your replies. Thanks for reading.

[peeta]

any update on this pls?

[islandgirl]

As I understand the situation if the rent is not a full 2 months outstanding on the date of the hearing posession will not be awarded. So that is the first thing to do - ensure you pay enough to bring it to that point. Then go along and explain everything you have explained above. Have you sent a bundle of evidence of agreed plans etc into court? You need to do so. And a schedule of what you have paid and when and how you have stuck to all the plans.

[peeta]

thanks for the reply...

any thoughts on my technical questions - do they give rise to any valid defence pls?

[peeta]

any chance atticus and/or des8 in getting your thoughts on the above ?

[islandgirl]

I hope that the two members mentioned will reply and they may have more experience of S8 claims but my view would be no, the technical points would not be a valid defence and to avoid an order against you arrears should be brought to below 2 months on the date of the hearing. I hope for your sake that I am wrong!

[des8]

Sorry, but I have very little knowledge of Sec 8 notices.
I'll try and do some reading over the next couple of days and if you don't hear from others in the meantime I'll come back with my uneducated thoughts

[peeta]

thanks all for your replies...I just want to avoid having a judgement taken against me and I end up paying the LL costs.. I can look to borrow money and bring down the arrears to less than 2 months.

Even in that case, Judge may order a suspended order right - will I end up paying LL's legal costs when that happens too ?

[efpom]

The Grounds are specified in Sch.2 of the Housing Act

https://www.legislation.gov.uk/ukpga/1988/50/schedule/2

I assume that the rent is due monthly in advance*. You do not say whether that is the case or what the rent is.

Ground 8 is mandatory, meaning that the judge must grant the Order for Possession.

But that Ground falls away if on the date of the Order for Possession hearing less than 2 months* arrears exist. That includes historic arrears being reduced under a repayment plan.
But Ground 10 & Ground 11 do not fall away.

Ground 10
Some rent lawfully due from the tenant— a)is unpaid on the date on which the proceedings for possession are begun

Ground 11
Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent

Grounds 10 and 11 are discretionary, meaning that the judge hearing the Order for Possession application has jurisdiction to decide whether or not to grant the Order for Possession.

On costs, an Order that you pay the costs is discretionary. having said that, if your Tenancy Agreement states something to the effect that you are required to pay the costs of possession proceedings, it is very likely the judge will order costs against you.

From your writing, even if you you don't owe any arrears on the date of the hearing, I do not see a defence to 11 or 12, except that you are doing your best to pay off the arrears.

It is, however, clear that the Landlord wants you out and I am puzzled as to why he did not issue a section 21 notice and use the accelerated procedure, which does not require a hearing, to obtain an Order for Possession.

There may be a technical defence footed on the Section 8 Notice being invalid. If you want to run that defence, I think you would have to obtain advice from a solicitor or barrister specialising in Housing Act Proceedings.

[islandgirl]

Good advice! In my experience posession is rarely granted on grounds 10 and 11 alone. For further detailed info google Landlordzone (a forum for LLs and tenants). You may get more info on the technical arguments there but my advice remains to ensure that less than 2 months is outstanding at hearing date and bring proof of payment plans drawn up and stuck to. Costs of court action will be for the tenant to pay. Efpom is right, if the LL wants you out he will eventually get you out, although it may take some time. The costs of doing so will be recoverable from you.

[peeta]

Thanks for the replies efpom , I pay monthly rent and rent is 1200 PCM. My current arrears is 5k.

so, it looks like, I cannot do much to avoid having to pay the legal costs.

Even if I reduce the arrears to less than two months rent, the Judge may ask me to pay the legal costs right ? or if I do it, is there any chance, I do not have to pay it . (the tenancy contract does not say anything about costs in court actions).

I also do not know why section 21 was not served..but if it served, do I also end up paying the costs for that (just curious)

btw, anyone familiar with section 213 / 214? coz c) Since the start of the tenancy, the agents changed one party to another and the PI served for deposit protection has the address of the previous agent (but the landlord name is correct and it has not changed) - what this means is technically from the PI, I have my landlord address as the previous agent's which is wrong. does this give rise to any counterclaim as new PI with new address of the new agent was never served?

[efpom]

On costs, my view, for what it's worth, is that it is likely that costs will be awarded against you.

I don't understand your last paragraph references 213 214 c) ? Also what is PI?

[islandgirl]

prescribed information - right to rent booklet etc. I believe that these technicalities would not prevent a possession order. I agree with Efpom - costs would be awarded

[efpom]

My reading of the Act is that if s s.21 Notice is served, it is ineffective if the prescribed information is not given to the tenant before or at the same time as the S 21 notice is served BUT that if a s.8 Notice is served and the prescribed information is/was not served on the tenant, that "non service" would NOT make the s 8 notice ineffective.

[peeta]

ok, thanks again.. yes deposit protection is not a defense to s8. But, if there are grounds, I can conterclaim,

Looks like, the only option is for me to talk to landlord...