Evicting a Tenant for Unpaid Rent Arrears

About evicting your tenant for rent arrears

As a landlord, you are able to apply to the court to evict a tenant if they have unpaid rent arrears. This is known as an application ‘seeking possession’.

Before you issue legal proceedings for possession, there is a specific procedure you must follow, which includes you having to provide your tenant with notice in writing in a specified form.

It is not uncommon for tenants to ignore the notice and stay on at the property. In such cases, you will usually have to get a court order before you can evict your tenant, but you won’t be able to apply for an order until the notice period has run out. The court order is known as a ‘possession order’.

If your tenant does not leave by the date stated on the possession order, you will need to enforce the order, either through warrant for possession using the County Court bailiffs or, where you have specific permission from the County Court to transfer enforcement, by writ of possession using High Court Enforcement Officers.
It’s worth noting that some types of tenancies do not require court orders to evict tenants, but these are very restricted. If you’re unsure about the process of providing notice or applying for an order for possession, you should seek legal advice.

Below, we explain what happens once you have a possession order to evict your tenant and what your tenant might try and do to prevent the eviction.

If you decide to take your tenant to court to recover unpaid rent arrears and have your tenant evicted, the procedure you must follow is:

  • send your tenant a notice in writing (this must be in a specified form to comply with legislation and must be served by specified methods
  • make an application for possession to the court and, if desired, a supported application to enforce in the High Court by writ of possession
  • if the tenant does not leave following the granting of the order, you will need to proceed with enforcement

If you decide to take the High Court route and obtain a writ of possession, you will need to apply to that County Court for permission to transfer the case to High Court Enforcement Officers for enforcement. In order to save expense and time, this request should be made in the original application for possession; but it can also be made at a later date if it was not requested at that time.

Your application to transfer the enforcement of the order to High Court Enforcement Officers can be made under section 42 of the County Courts Act (1984). We would recommend that this application be made by a solicitor, although you can make the application yourself as the claimant if you are confident to do so. The Court is not obligated to grant your application and may decide not to do so if the lead times for enforcement using the County Court bailiffs is not deemed (by the Court) to be unacceptable. You should contact the County Court bailiff and enquire as to lead times for enforcement by warrant of possession before making your application for transfer of enforcement. If the lead time is such that you will suffer considerable financial loss or hardship, you should mention this in support of your application.

Once you receive a possession order

Once you receive a possession order, it should give a date by which the tenant has to leave the property.
You may be granted a possession order without the need for a hearing, although this will depend upon the type of tenancy you have and whether you can benefit from the ‘accelerated’ possession procedure. It is likely there will be a court hearing in other cases, in which case the court is likely to grant orders framed in one of the following ways:

  • A suspended possession order
  • A postponed possession order
  • An outright possession order

Alternatively, the judge could decide to:

  • dismiss the case
  • make a money judgment.

Suspended possession orders

What happens if you are granted a suspended possession order?
This would generally mean that your tenant is allowed to stay in your property as long as they keep up the rent repayments and pay you the outstanding debt. If your tenant continues not to pay, you can then apply for the court to issue a warrant of possession.

Postponed possession orders

What happens if you are granted a postponed possession order?
Similar to a suspended possession order this type of order allows your tenant to stay in your property as long as they keep up the rent payments and pay you the outstanding debt. However, if your tenant does not stick to the agreed payment arrangement, you can ask the court for a possession date. Once the possession date is agreed and has passed, you will need to apply for permission to enforce your order and evict your tenant. You may be required to write to your tenant to try to agree the payment of rent arrears or a possession date before you make a further application to the court.

Outright possession orders

What happens if you are granted an outright possession order?
You will be granted an outright possession order if your tenant cannot persuade the judge that they can keep up their rent payments as well as pay you back the rent arrears and there are no other mitigating factors. Under this type of order, your tenant will have to leave your property by a certain date. If they don’t, you can apply for a warrant of possession or, if the court has granted, or is prepared to grant leave to enforce in the High Court, a writ of possession.

Please note, under certain circumstances, it may be possible for your tenant to postpone or set aside the warrant for possession or writ of possession.

Money judgments

You may also ask the court to give you a money judgment for rent arrears/substantiated losses at the time you ask for a possession order. This means that your tenant will have to pay you the money they owe you even if they leave the property.

Be aware that if you are granted a suspended or postponed possession order, the money judgment may also be suspended or postponed as well..

Getting a County Court Judgment (CCJ) against your tenant will affect their credit rating, which could make it difficult for them to get credit in the future.

Once you have a warrant of possession or writ of possession

You must apply for a warrant of possession or writ of possession (if the County Court has given permission to transfer enforcement to the High Court) if your tenant hasn’t left by the date on the possession order and you still want them evicted.

Effectively, a warrant for possession/writ of possession is the court granting Enforcement Officers the authority to evict your tenants. If you decide to use County Court Bailiffs and obtain a warrant of possession, it will state a date and time for the eviction and your tenant will also receive a notice of eviction. If your tenant still hasn’t left by the date on the notice, the County Court Bailiffs attend and will evict the tenant.

If you decide to obtain a writ of possession and use High Court Enforcement Officers, it is best practice to give notice of the eviction to any occupant and the High Court might require you to do so before granting the writ.
Is there anything your tenant can do once the warrant or writ is issued?
It is possible for your tenant to ask to have the warrant/writ of possession suspended or for the judgment for possession to be ‘set aside’. In such cases, the eviction cannot go ahead and the court will usually give further directions.

Having the warrant/writ of possession suspended

If the court stops the eviction going ahead by agreeing to suspend the warrant/writ, it would prevent the eviction from taking place until further order. Please note, your tenant can only apply to do this before the eviction actually takes place and they will need to provide enough evidence to persuade the judge that warrant/writ should be suspended.

Having the warrant/writ for possession ‘set aside’

Your tenant can apply for a warrant/writ to be set aside, either before or after the eviction, and if the court agrees to this, the effect is as though the warrant/writ of possession was never issued. However, there are very few circumstances when a court will actually do this. These circumstances might include:

  • If the warrant/writ was wrongly issued before the date on the possession order;
  • If there was a failure to give proper notice;
  • If you deliberately gave wrong information to the court or didn’t give them information you knew of that would affect the court case.

Seizing your tenant’s goods for unpaid rent arrears

If your order states that the tenant should make payment of arrears and the tenant fails to do so, you will be able to enforce the ‘money judgment’ by instructing a bailiff or High Court Enforcement Officer to seize goods belonging to the tenant. This is called ‘taking control of goods’. The Enforcement Officer will seek payment of the judgment amount and (subject to there being goods available for seizure) will have the option to seize and remove goods for sale at auction if the judgment amount and costs are not paid. If you are seeking to instruct a High Court Enforcement Officer to take control of goods, you will need to obtain the permission of the court first.

For more information on what our High Court Enforcement Officers can and can’t do see our High Court Enforcement Officers section.