Re-possession:

During the present health crisis, with everyone on virtual lock-down, new lettings are on hold, but when normality resumes, as it surely will, people will want to let out their own homes on a temporary basis.

Whether for extended travel or working away, there is a little known way of letting which ensures landlords can reclaim possession of their properties safely at the end of the term – known as ground 1. It applies where the letting has been your main residence and you are returning to occupy it yourself, or where it was not your main residence before but that you intent to live there now.

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There has been much talk of a change in the law which would mean that the existing shorthold regime would be replaced by something equating to an open ended tenancy, but don’t worry, this won’t happen for at least a couple of years and given the current crisis, perhaps even longer.

This article is based on English law and is not a definitive statement or interpretation of the law; rules change and every case is different – only a court can decide. Other jurisdictions are similar but there are important differences. Always seek expert advice before making or not making decisions.

Ground 1 comes under section 8 of the Housing Act 1988 and appears in schedule 2

In order to apply this clause two things need to happen: (1) your tenancy agreement should include a clause referring to ground 1 and that this may be involved, and (2) the tenant, prior to the start of the tenancy, must be served a notice explaining ground 1 and stating that the letting is on the basis that ground one may be invoked. Of course you need to keep a copy and get proof that the tenant received it, ideally a signature.

Ground 1 (Section 8, Schedule 2, Housing Act 1988) states:

Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice and (in either case):

(a) at some time before the beginning of the tenancy, the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them occupied the dwelling-house as his only or principal home; or

(b) the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them requires the dwelling-house as (his, his spouse’s or his civil partner’s) only or principal home and neither the landlord (or, in the case of joint landlords, any one of them) nor any other person who, as landlord, derived title under the landlord who gave the notice mentioned above acquired the reversion on the tenancy for money or money’s worth.

Notice requiring possession:

Ground 1 is a mandatory ground, which means that providing the conditions have been met in full the court must issue a possession order – it requires the same notice period as a s21 notice – minimum of 2 months.

Ground 1 no Prior Notification Notice

In this matter the courts have some discretion, so in exceptional circumstances, where a landlord lived in the property prior to the tenancy, and they can show exceptional hardship on the landlord’s part, and better circumstances for the tenant, the courts have been known to issue a possession order without the Ground 1 Prior Notification.

Involking Ground 1

If Ground 1 needs to be invoked, the landlord serves a section 8, ground 1 notice on the tenant which gives the tenants a 2-month notice period. However, this notice cannot expire within a fixed-term period. Housing Act 1988 s7(6)(a)

Given the long notice period and court schedule waiting times, it is likely to be at least 3 months before the tenant can be removed, even in a best case scenario so returning landlords should plan for this.