As part of the weekly Blog we like to keep you to date with current items or topics of conversation we are finding forefront when we speak to members of the ELA. A recent issue arose around the topic of ‘Breathing Space’. What is it and what does it mean to landlords?

In short, if you, as a landlord, are taking formal action against rent arrears, the tenant can apply for ‘Breathing Space’ which lasts for up to 60 days (in cases where the tenant has received debt advice).
What does this mean for me?
This means that you will not be able to move forward with any legal proceedings whilst the breathing space is in force and there is a public register you are able to check against if your tenant has applied.
By way of background, a registered debt advisor, ie one who is licensed by the FCA who can advise on debt is entitled to create a breathing space. If a breathing space has been created it means in simple terms:
- The subject cannot be pursued in any way to recover their debt
- Legal proceeding based on that debt must stop
This includes possession for rent arrears.
However, one misconception is that tenants don’t have to pay their rent – in fact they do! The FCA are bound to act appropriately, and they have to apply a set of qualifying criteria. This needs to be fair to the creditors. It is created to allow debtors to enter into some type of solution in an endeavor to pay off their debts and creates a temporary respite from their debts while they work out the best course of action to clear them.
A landlord is allowed to communicate with their tenant but not allowed to demand any payment of the debt (this communication has to go through the debt advisor), and of course you can accept payment of the debt.
Tenants cannot just claim moratorium (temporary postponement/suspension) and then just not pay, if they don’t, the moratorium can be cancelled.

There is also a mental health breathing space but this has to be registered by mental health professionals via a professional report. It can only be applied for someone experiencing a ‘mental health crisis’ and the regulations are very specific that this applies to someone who is indeed in a crisis, which is a defined term in the legislation. It clearly states that where the debtor has to have been hospitalised or very close to it, or the mental health community team are dealing with the situation rather than admitting them to hospital.
Some concluding factors:
All ‘breathing spaces’ must be reviewed halfway through (i.e after 30 days)
Creditors can ask that they are stopped if they are unfair
Applications to the court can be made to force the end
Only restrict proceedings based on debt subject to a moratorium
No restriction on:
Proceedings based on new debts
Section 21 possession claims
Claims for anti-social behaviour
It doesn’t in any way prevent anyone going to court for possession, just those seeking possession in respect of the arrears that are subject to the breathing space only.
Please note that we still await finalised details from the RRB and all details on our Blog are correct and accurate at date of publication. At ELA we are able to use legal training resources and webinars to ensure we bring you extracted and relevant information.
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