DPS adjudication case study: Rent arrears challenged by evicted tenant

The Deposit Protection Service (The DPS) keeps deposit money safe for letting agents, landlords and renters during the course a tenancy. Its free, government-accredited custodial tenancy deposit protection scheme has protected over five million deposits over the last decade. 

Its Dispute Resolution Service allows landlords, letting agents and tenants to resolve disputes without resorting to lengthy or expensive court procedures, and over the last decade has adjudicated over 60,000 disputes.

In our new adjudication case study series, The DPS’ head of adjudication, Alexandra Coghlan-Forbes, is going to share examples of recent, real-life case studies with us. 

Over the coming months, she’ll talk us through the guidelines that affect the way her team reaches decisions to help agents and landlords understand the process.

Our third case study looks at charges levelled at an instance of an evicted tenant challenging rent arrears…

The situation 

A landlord claimed £1,200 for rent arrears after their tenant vacated the property at the end of July following a court order, without paying rent for the final month.

The tenant disputed that any rent was owed because they were taken to court and had been advised by Citizens Advice that no rent was due for the final month following the issuing of a court order. 

The tenant also claimed that the issue of rent was a matter for the court, and not for a deposit protection scheme. 

On 14 June 2018 the court made an order for possession under the accelerated possession procedure, which required the tenant to give up possession by 28 June.

However, the tenant did not leave by the deadline, and the landlord instructed a bailiff to evict.  The tenant was eventually evicted on 1 August, but did not pay the rent for the final month of July.

Evidence submitted as part of the dispute included the order to re-possess the property, as well as a rent statement showing that no rent was paid for the month of July. 

The decision 

The court order was clear that the tenant had been ordered to return possession to the landlord by 28 June. However, they didn’t leave until 1 August when the bailiff attended the property.

It is technically correct that a tenancy ends on the date that the court orders possession to be given up, in this case 28 June 2018. Because the tenant remained living after this date, no ‘rent’ can be paid, as ‘rent’ is only payable under a valid tenancy agreement.

However, if the tenant continues to live in the property after the possession date, they are required to pay ‘mesne* profits’, a sum equivalent to the old rental payments. Effectively, this is a charge for the continued use and occupation of the property.

Moreover, the tenant’s argument that The DPS should not be able to resolve the issue of any outstanding rent because of the possession order was found not to be valid. The order for possession had been made under the accelerated possession procedure (Section 21). A ground for possession doesn’t need to be established if an order is made on this basis. This means that the court won’t have any consideration as to whether any rent is owed. 

As the court order didn’t make any reference to rent arrears, it was clear the court hadn’t considered this issue.

A tenant is liable to pay the landlord for living in their property, even where the court has made an order requiring them to leave. If the tenant doesn’t vacate on the date ordered, the tenant will still be required to continue to pay for living there.  

Whilst the landlord won’t accept a payment as ‘rent’ (as this would imply that the tenancy was still in force), the landlord will expect the tenant to continue to reimburse them until the date they vacate.

The court did not make any order about the rent arrears, so the adjudicator considered the rent statement and concluded that money was owed and should be paid from the deposit.

*pronounced ‘mean’

**Alexandra Coghlan-Forbes is head of adjudication at The DPS