Tenant Eviction Defences

 

Common Tenant Defences To The Eviction Process

 

Technical defences relate to errors with the notice or the claim. The tenant's legal representative will delay, or have the claim struck out, by arguing that the landlord is not entitled to possession due to non-compliance with a statute or a civil procedure rule. In this case the landlord will be ordered to pay the tenant's legal costs.

 

Service

 

A common defence to the eviction process is for the tenant to argue that the notice was never received. In this case the landlord will have to provide satisfactory evidence at the hearing. Personal service on the tenant with the server being present at the hearing is best practice.

 

Invalid Notice

 

The are many errors that can invalidate a notice and so delay the eviction process. Landlords often have not read the relevant sections of the housing act and so do not appreciate what information should be contained in a notice, what notice to use, and what expiry date should be given.

 

Evidence

 

Only the person who collects the rent can give evidence at the hearing regarding the rent arrears. Hearings are often adjourned because there is a disagreement over the exact amount of rent arrears. Landlords must be correctly prepared so they can confirm the arrears schedule with confidence to the judge.

 

Counter-claims

 

Counter claims can seriously delay the eviction process. These claims are made against 'normal route' claims and are successfully used to offset or exceed the amount of rent owned by the tenant. This can mean that the landlord is unable to obtain possession and has to pay the tenant's legal costs.

 

Counter claims for non-compliance with the deposit rules are common. Any deposit taken after 07 April 2007 must be registered with a scheme, and the initial requirements of that scheme complied with, within 14 days of being taken. Landlords often do not realise that deposits physically taken before April 2007 but then referred to in a tenancy agreement after this date are also covered by the regulations. Non compliance carries a sanction of 3 times the deposit amount, the return of the deposit, and the tenant’s legal costs. This will be offset this against the rent owing.

 

Counter claims for disrepair are frequently used to delay or stop the eviction process. The tenant's counter claim will often be more than the value of the outstanding rent. Each party will be given time to obtain a surveyor's report to assess the value of the damages. Disrepair issues should be considered before any claim is filed at court to avoid this costly situation.

 

Problems at the court

 

The county courts are under a great deal of pressure especially with claims associated with the eviction process. Papers can be lost. It is important to clearly label any correspondence in the way that the court expects. Always ring the court to check that a claim has been received and allocated a claim number.

 

At the hearing the landlord should always be accompanied by an advocate who can answer the judge's legal questions and refer to the correct documents to support the claim. Some judges can apply the relevant civil procedure and statutory rules very strictly. Being assisted by an advocate that specialises in the eviction process greatly increases the chance of avoiding an adjournment that will delay the matter for weeks.

 

Previous - How to Evict a Tenant