Building on our earlier discussion of Section 8 notices, it’s important to remember that landlords can cite up to 21 different reasons for seeking possession of a property. These reasons can be used separately or together.
Some are called Section 8 notice mandatory grounds for possession. In this blog, we will look at the discretionary grounds for possession and their detailed rules.
What are the Discretionary Grounds for Possession?
There are eleven different discretionary grounds or reasons for possession.
When a landlord claims a discretionary ground for possession of an assured or assured shorthold tenancy, the court must decide if the landlord has proven that the conditions for the ground are met, and it is just and reasonable to evict the tenant.
Most housing association tenants have an assured tenancy, whereas most private tenants usually have an assured shorthold tenancy.
The grounds are named after the number given to them by Schedule 2 of the Housing Act 1988. When filling in Form 3: notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy landlords must specify the exact number of the ground or grounds they are relying on, and explain how those grounds apply to their specific situation.
The Discretionary Grounds for Possession
The Section 8 discretionary grounds for possession are:
- Ground 9 – Suitable alternative accommodation is available to the tenant
- Ground 10 – Tenant is in rent arrears
- Ground 11 – Persistent delay in paying rent even if the tenant is not in rent arrears
- Ground 12 – Breach of the tenancy agreement by the tenant
- Ground 13 – Deterioration or dilapidation of the property due to tenant’s neglect
- Ground 14 – Antisocial behaviours, nuisance, annoyance or illegal use of property
- Ground 14ZA – Riot conviction
- Ground 14A – Domestic abuse
- Ground 15 – Deterioration of furniture due to tenant’s neglect
- Ground 16 – Accommodation provided as part of an employment contract
- Ground 17 – Tenancy induced by deception
The most common reasons for a landlord to seek to recover possession of a property from renters are rent arrears, antisocial behaviour, breach of tenancy agreements, and damage to the property due to tenants’ neglect.
Below, we look at those reasons for bringing possession proceedings in more detail.
Private landlords cannot use Grounds 14A. Only housing associations and charitable housing trusts can use this ground to evict the perpetrator of domestic abuse when one member of a couple has left the property because of domestic abuse from the other partner and is unlikely to return. Domestic abuse is not limited to physical violence.
Rent Arrears or Persistent Delay in Paying Rent
Under ground 10, the court can order possession if there is any amount of rent lawfully due by the tenant when the notice was given and on the day of the court possession hearing. Unlike mandatory ground 8, with ground 10 there is no minimum amount of rent arrears that must be owed by the tenant on the date of the hearing.
Claims for rent arrears usually rely on cumulative ground 10 and ground 11 for persistent delay in paying rent. If landlords want to rely also on mandatory ground 8 for serious rent arrears, they will need to choose whether they want to proceed on ground 8 or the discretionary grounds 10 and 11 at the court hearing. This allows landlords to counteract to tenants’ tactics to reduce their arrears under the legal minimum just before the court hearing.
For discretionary grounds, in addition to deciding if there are rent arrears at the time of the hearing or if there has been a persistent delay in paying rent during the tenancy, the court will need to decide if it is reasonable to order possession. To do that, the court will consider:
- Tenant’s Payment History: A record of rent payments and any arrears
- Reason for Rent Arrears: Explanation for the unpaid rent
- Tenancy Breaches: Any other violations of the tenancy agreement
- Arrears Repayment Efforts: Steps taken by the tenant to address the overdue rent
- Financial Impact on Landlord: How late payments affect the landlord’s income
- Mortgage Implications: Whether late rent payments have caused the landlord to default on their mortgage
Both grounds 10 and 11 must give a minimum of two weeks’ notice to the tenant before court action can begin, and a possession order can only take effect during a fixed term if the tenancy agreement allows it.
Antisocial Behaviour, Nuisance, Annoyance, Illegal or Immoral Use of the Property
Ground 14 can be used when the tenant or anyone living or visiting the property has caused anything of the above-mentioned against neighbours in the area, the landlord, or someone employed by the landlord.
Before making a possession order, the court must consider different factors, including:
- the seriousness, frequency and severity of the antisocial behaviour
- the effect of such behaviour on other people
- any apologies, remorse or offers to rectify the situation
- the effect that behaviour on others if repeated or continued
- any contributing factor, for example, inadequate sound insulation or similar
In more serious cases of antisocial behaviour where there has been a conviction for serious offences, the landlord can use mandatory ground 7A.
If ground 14 is proven, court proceedings can start immediately. A possession order can take effect during a fixed term if the tenancy agreement allows it.
Breach of the Tenancy Agreement
Ground 12 applies when the tenant has breached a term of their tenancy contract other than non-payment of rent. Common breaches of a tenancy agreement include subletting or taking in a lodger, smoking on the premises, or keeping a pet when the tenancy agreement expressly forbids it.
The minimum notice period for ground 12 is two weeks and a possession order can only take effect during a fixed term if the tenancy agreement allows it.
In certain cases, the court can dispense the landlord from serving the Section 8 notice when it is just and equitable.
Damage to the Property Due to Tenants’ Neglect
Ground 13 covers damage to the property and common parts caused by the tenants or others residing in the premises, including a lodger but excluding visitors. The damage can be caused by action or inaction. A landlord can claim ground 13 against a tenant with serious hoarding or other mental health disorders, but the tenant might raise a disability discrimination defence.
Common parts include communal stairs, hallways, rubbish chutes and other facilities in a block of flats.
The minimum notice period for ground 13 is two weeks and a possession order can only take effect during a fixed term if the tenancy agreement allows it.
How We Can Help
Choosing the right grounds and satisfying all their conditions requires diligent legal oversight to prevent errors in the Section 8 notice and delays in the recovery of the property. Filling in the notice Form 3 correctly and showing how the grounds apply to the landlord’s circumstances can make the difference between winning the possession claim or losing. An experienced Landlord and Tenant Law Practitioner will ensure matters run smoothly and minimise the risk of failure.
As experts in residential property law, Witan Solicitors can provide expert advice and representation on all insolvency matters. Contact us on 0330 173 6983 or send us an email for more information.
