05 June, 2013
Grounds for Possession – Assured Shorthold Tenancies
The Housing Act 1988 as amended by the Housing Act 1996 lays down certain circumstances (grounds) under which a landlord may successfully apply to court for possession.
The grounds for possession fall into two categories: mandatory, where the tenant will definitely be ordered to leave if the landlord can prove breach of contract, and discretionary, where the court can decide one way or the other.
These grounds for possession apply to tenancies entered into after 15 January 1989. The terms of your tenancy agreement must make provision for termination on these grounds.
These guidelines are based on English law and are not a definitive interpretation of the law, every case is different and only a court can decide, so if in doubt seek expert advice.
Mandatory Grounds for Possession:
Ground 1 - This ground can be used where a landlord (or his spouse) has occupied the dwelling as his only or principle home at some time, and having given notice of his intention to return, now wishes to do so. Successors in title may also use this ground provided they did not purchase the dwelling.
Ground 2 - This ground is used by a mortgage wishing to gain vacant possession in order to exercise a power of sale. Notice will need to have been given to the tenant. The mortgage must have been taken out before the tenancy began and the the tenant warned about this contingency within the tenancy agreement.
Ground 3 - This ground applies to premises which within the last 12 months have been the used as holiday lets and have currently been let on a fixed term of up to 8 months, usually for the winter period. Notice must have been served that the property is to be returned to holiday let use, usually for the summer period.
Ground 4 - This ground applies to student accommodation owned by educational institutions. Whilst students are normally licensees, this ground applies where the institution has let for a fixed term of up to 12 months.
Ground 5 - This ground applies to properties owned by religious bodies, where, for example, the property was occupied by one of their ministers and is now required for another.
Ground 6 - This ground is similar to one established in commercial leases (Landlord and Tenant Act 1954) where recovery of possession is allowed where a landlord wishes to demolished or substantial reconstruct or redevelop the building.
Ground 7 - This ground concerns inherited or succession rights rights to a tenancy. It allows the landlord to claim possession where proceedings are started within one-year of the tenant’s death (or later if the court allows) irrespective of whether rent was accepted or not. The ground cannot be used against a surviving spouse.
Ground 8 - This ground has been changed by the Housing Act 1996 and concerns arrears of rent. Arrears must exceed 8 weeks if the rent is paid weekly or fortnightly, 2 months if paid monthly, one full quarter if paid quarterly or 3 months if paid yearly. The maximum arrears in each case must exist both at the notice of proceedings and at the hearing itself. The ground must be clearly stated so that the tenant knows what he is responding to.
Discretionary Grounds for Possession:
Ground 9 - The landlord seeks possession because he has offered the tenant suitable alternative accommodation. The tenancy must be on the same basis, for example if the old one was furnished, the new one must be, and the landlord can be asked for removal expenses. If the tenant contests it is often on the basis of what is suitable alternative accommodation.
Ground 10 - This ground covers arrears of rent being in arrears less than the times specified in mandatory ground 8. This ground also, with the consent of the court, allows rent recover by distress.
Ground 11 - This ground covers persistent delays in rent payment. However, being a discretionary ground the court will take into account factors outside the tenant’s control, for example, delays in housing benefit payments
Ground 12 - This ground covers tenant’s in breach of their contractual (lease or tenancy) agreement conditions, other than rent payments.
Ground 13 - This ground covers waste, neglect or default concerning damage to the tenant’s accommodation or common parts. This ground also covers the acts of sub-tenants, lodgers, tenants family or visitors.
Ground 14 - The landlord can seek possession where a tenant, sub-tenant, lodger or visitor is causing a nuisance to neighbours or is using the property for illegal or immoral purposes. The ground also covers cases of domestic violence where one partner has left and is unlikely to return.
Ground 15 - This ground covers cases where landlord’s furniture has been ill-treated.
Ground 16 - This ground covers cases where the tenant was an employee of the landlord and has since left his employ. This case is rarely used as most resident employees are licensees and therefore not covered by the housing acts.
Ground 17 - This final ground was introduced by the Housing Act 1996 and covers cases where the tenancy has been created as a result of a false statement knowingly having been made by the tenant or someone acting on his behalf. It is worth noting here the importance of a Tenancy Application which seeks factual information from the tenant. See alsoTenant Screening.
There is also one other overriding reason for seeking possession, and that is where it can clearly been shown that the tenant is no longer using the accommodation as his principal home.
All claims for possession during the fixed term must be preceded by correctly serving a Section 8 Notice.
Claims for Rent Arrears
For Rent Arrears, perhaps the most common claim, the landlord relies on either one or a combination of grounds 8, 10 and 11.
- Ground 8 - the tenant owes at least two months’ rent (monthly tenancy) when the notice was served and at the date of the court hearing. Where rent is payable weekly, quarterly or yearly this ground requires that there are rent arrears of eight weeks, three months and six months respectively.
- Ground 10: the rent was overdue when the landlord served notice and when he began court proceedings
- Ground 11: the tenant has been persistently late in paying his rent.
Periods of Notice Required – Serving a Section 8 Notice
You must serve notice seeking possession of the property on the tenant before starting court proceedings. You need to give the following periods of notice :
Grounds 3, 4, 8, 10, 11, 12, 13, 15 or 17 – at least 2 weeks
Grounds 1, 2, 5, 6, 7, 9 and 16 – at least 2 months
For ground 14 – you can start proceedings as soon as you have served notice.
Where the tenancy is a contractual periodic or statutory periodic tenancy, the notice must end on the last day of a tenancy period.
Serving Notices Seeking Possession
Section 8 and section 21 notices can be served in person or by mail. Courts will accept proof of postage or a recorded delivery as proof of delivery on the day, though it’s advisable to allow sufficient time to arrive.
If served in person, ideally this should be witnessed. Personal service is preferable, with proof of postage being the next option recommended. Sometimes respondents refuse to accept and sign for recorded delivery letters which causes delay.
County Court – Claims for Possession Procedures
To gain possession of the property the landlord will need to complete the Form for Possession of Property N5 Formand the Particulars of Claim N119. If you also want to claim rent arrears you can provide details on the particulars of claim form.
You should send or take your completed forms to the county court office in the district where the rental property is located. Once your completed forms are received at the court office, your case will be allocated a hearing date. For guidance, you should read the notes for claimant (rented residential premises) on the Court Service web site.
If you have any questions about any of the issues here, post your question to the LandlordZONE® Forums – these are the busiest Rental Property Forums in the UK – you will have an answer in no time at all.
©LandlordZONE All Rights Reserved – never rely totally on these general guidelines which apply primarily to England and Wales. They are not definitive statements of the law. Before taking action or not, always do your own research and/or seek professional advice with the full facts of your case and all documents to hand.©LandlordZONE® – legal content applies primarily to England and is not a definitive statement of the law; always seek professional advice. Legislation changes, so check dates on these articles. If you have questions go to the LandlordZONE® Forums