02. Rent or Mortgage Payment Problems

If you have missed your rent or mortgage payments, landlords and mortgage lenders may have the right to evict you. But the procedure for doing this, called 'possession proceedings' is quite long, and you should have enough time to come up with a plan to make reasonable repayments to your landlord or your mortgage lender before the court gets involved.

If you have a second mortgage(or a loan secured on your home, regulated by the Consumer Credit Act 1974), and your payment plan is refused by the lender, you may be able to get a 'time order' through the courts, which will let you keep your home. Under a time order, the court can reduce or even stop the interest that is adding up on the money you owe, and reduce the instalments you pay to a level you can afford. But you have to show the court that you are having genuine difficulty making the payments. You may also have to show that you would be able to pay the full instalments again at a later time.

For more details, see 'Time order'.

Possession proceedings
The possession procedure starts with a notice from your landlord or a solicitor's letter from your mortgage lender warning you that they could take you to court. After that you will receive a county court claim with a date and time for you to go to the local county court. At the court you will have to explain to a judge what your situation is and what you plan to do.

The court will need to see that you have missed payments, and that your landlord or mortgage lender used the proper procedures in trying to get the money you owe. If your landlord has not done what they were supposed to do (for example, they didn't repair your house or flat), the court might not make a possession order.

If you are a local authority (council) tenant, and unless you have what's called an 'Introductory tenancy', the court must decide if an order is reasonable. It will take account of whether you are vulnerable (for example, if you are elderly) and whether you have tried to make payments.

If your landlord or mortgage lender proves their case, then the court usually grants a possession order. But normally, if you start paying the money you owe, you won't be evicted.

The court can allow you to pay off the mortgage repayments you've missed over the years you have left on your mortgage. It can also let you clear any payments you've missed on your council rent, depending on how much you can afford to pay.

If you then miss payments, the landlord or mortgage lender can ask for an eviction warrant. You won't be warned of this beforehand, although the court should tell you the date of eviction. At this stage, you can ask for a court hearing to ask the judge to call off (suspend) the eviction. You should do this before you eviction is due, because after that, your application will probably be refused. You will need specialist legal help if you are in this situation.

The main exceptions to this procedure are if:

• you have an 'assured shorthold' tenancy from a private landlord (not the council or a housing association, for example); and
• you have missed more than two months' rent payments. In this case, the court will automatically award a possession order against you which cannot then be suspended to give you time to pay.
• you have an 'introductory tenancy' from a public landlord (such as a local authority).  Again, this means a possession order will be awarded automatically.

There can be other reasons why the court can award a possession order. For more on tenancy types and rights, see the Community Legal Service leaflet 'Renting and letting'.

Also see the Community Legal Service Leaflet, 'The Human Rights Act', which explains the Act and how it might affect you.  This Act gives everyone the right to 'respect for privacy and family life, home and correspondence'.  It doesn't mean that you cannot be evicted, but the courts may see eviction more as a last resort.