This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Discretionary grounds: Assured tenancies

This content applies to England

This section explains the discretionary grounds for possession for assured tenancies.

Overview

Grounds 9 to 17 are discretionary grounds for possession. If the landlord is using any of the 11 grounds set out below, it must be reasonable for it to grant possession. The court also has wide powers of adjournment in cases involving discretionary grounds.

Before applying to the court for a possession order a landlord must serve a notice of seeking possession (NSP) on an assured shorthold tenant. For information about NSPs see the page on Notices: Assured tenancies .

Social landlords should follow the Pre-action Protocol for Possession Cases by Social Landlords before pursuing possession proceedings.

Definition of 'reasonable'

'Reasonable' means having regard to both the interests of the parties concerned and the public's interests. A number of factors can be taken into account, such as the reason for and the seriousness of the breach; whether the tenant has had an opportunity to remedy the breach; whether the breach has, in fact, been remedied; the effect of the tenant's conduct on others; the consequence of eviction for this particular tenant and her/his family; and whether any further breaches have occurred in the run up to the trial. In one Court of Appeal case, it was held that a county court judge had been entitled to make an outright order on discretionary grounds following the tenant's breaches of a number of covenants regarding use and repair of the rented premises. Those who committed persistent breaches of tenancy agreements could be at risk of immediate possession orders; it was not necessarily the case that because individual breaches were small, a suspended order would automatically be made.[1]

In rent arrears cases, social landlords should follow the steps outlined in the Pre-Action Protocol for Possession Claims by Social Landlords before pursuing possession proceedings.[2]

Where a tenant suffers from a disability and that disability is related to the grounds for possession (eg a tenant whose mental health problems mean s/he fails to claim housing benefit promptly or at all) then the taking of possession proceedings, and any eviction which potentially results, may amount to unlawful discrimination (see the Disability discrimination page for more information). That may form part of a defence or a counterclaim in possession proceedings.[3]

Furthermore, Government guidance makes clear that an application for possession should be a last resort for a social landlord.[4] The court can consider issues such as homelessness and mental health but, where the outcome of a homelessness application is not clear, it is wrong for the court to try to pre-empt the council's decision when considering whether it is reasonable to grant possession.[5]

Ground 9 – Suitable alternative accommodation

Two months' notice of proceedings required.

Suitable alternative accommodation must be available for the tenant, or will be available, when the court order takes effect. If the court is satisfied that the alternative accommodation is suitable it must also consider whether it is reasonable to award possession.

Matters to be taken into account

The Housing Act sets out matters that are to be taken into account when determining whether alternative accommodation is suitable or not.[6]

A certificate from the local authority stating it will provide accommodation by a specified date is conclusive evidence that suitable alternative accommodation will be available. However it is rare for such a certificate to be provided.

In the absence of a certificate, the landlord must prove the accommodation provides 'reasonably equivalent' security of tenure to assured status. Further, the landlord must satisfy the court that the accommodation is suitable for the needs of the tenant and her/his family with regard to:

  • proximity to work in respect of distance and/or time travelled[7]
  • its rent, size and character. A property that is less desirable can be suitable,[8] as can a property that is smaller.[9] The lack of a garden can be a relevant factor.[10] The character or environment is also relevant and the offer a property on an estate with a bad reputation was held not to be a suitable alternative to a house in a secluded area[11]
  • if furniture is provided in the current accommodation, furniture that is similar or reasonably suitable must be provided.

Accommodation will not be suitable if it will be statutorily overcrowded. For more information see the page What is overcrowding.

When a possession order is made under ground 9, the tenant is entitled to reasonable removal expenses from the landlord.[12]

Ground 10 – Rent arrears

Two-weeks' notice of proceedings required.

This ground requires that rent is in arrears at the time of serving the notice of seeking possession and at the start of court proceedings.

Arrears must be arrears of the tenant and not of a predecessor in title. A successor and assignee do not take on the arrears of the previous tenant.[13] The tenant's arrears from a previous tenancy cannot be relied on unless it is a condition of the new tenancy that those arrears are paid off. If there is disrepair then a claim for compensation can be brought as a defence (set-off) and counterclaim within the possession proceedings. That counterclaim, if successful, might wipe out or reduce the rent arrears.

The Pre-action Protocol for Possession Claims by Social Landlords outlines the steps that social landlords should take when rent arrears arise, before pursuing possession proceedings.[14] The landlord should be aware of the tenant's financial circumstances and any vulnerability they may have (eg related to disability, literacy problems, age). The landlord should take steps to come to an affordable agreement to pay off the arrears and/or for arrears to be paid by direct deductions from a tenant's benefit. Proceedings should not normally be commenced where the tenant has an outstanding housing benefit claim, s/he has provided the necessary information to support her claim, and s/he is likely to be eligible for housing benefit.

If the case does reach the court, in deciding whether it is reasonable to make a possession order, and in determining costs, the court will consider matters such as the tenant's payment record with the landlord, the cause of the arrears,[15] and whether the pre-action protocol has been complied with. In one case, a landlord sought possession where the Benefits Agency was deducting a sum from the tenant's income support for the current rent and an amount towards the arrears. A lump sum was forwarded to the landlord every three months, so it appeared that the arrears were regularly increasing before being reduced each quarter. The court found that the tenant was acting responsibly in stabilising the situation and regard should be given to the fact that the current rent was being paid.[16]

Other charges

Many landlords collect other charges, such as heating, council tax and water charges, as part of the rent. When the tenancy agreement provides for the payment of additional charges as part of the rent (or in consideration for use of the property) then such charges can be classified as rent.[17]

It should be noted that under the Water Resale Order 2006 it is unlawful for a landlord to make a profit from the resale of water and the High Court held that the amounts that one local authority landlord had charged its tenants for the supply of water exceeded the maximum charge permissible.[18] One impact of this decision was that its tenants had a defence to a possession claim brought on the ground of rent arrears.

For more information see What is rent?

Ground 11 – Persistent delay in rent payments

Two weeks' notice of proceedings required.

There need not be any current arrears at the start of court proceedings, but the landlord must prove that there has been a history of late payment. The Pre-action Protocol for Possession Cases based on Rent Arrears outlines the steps that social landlords should take when rent arrears arise before pursuing possession proceedings (see information on Ground 10 above).[19]

Ground 12 – Breach of tenancy obligation

Two weeks' notice of proceedings required.

This ground covers a breach of any term in the tenancy agreement other than rent. Common terms in tenancy agreements include, for example, that the tenant does not engage in acts of antisocial behaviour or keep pets.

There may be no breach of the terms of the tenancy if the landlord has waived the right to insist on the strict performance of the terms of the agreement. Furthermore, if the term is unfair, as defined by the regulations, it will not be binding on the tenant.[20]

Ground 13 – Deterioration in the condition of the property or common parts

Two weeks' notice of proceedings required.

The tenant, a member of her/his family, a lodger or a subtenant must be guilty of an act or inaction that has caused the condition of the property or common parts to deteriorate. If the lodger or subtenant has caused the deterioration, the tenant must have failed to take reasonable action to remove her/him from the property. For this ground, 'common parts' refers to any part of a building that includes the property let to the tenant, and any other premises that the tenant is entitled to use in common with the occupiers of other properties in which the landlord has an interest.

Ground 14 – Nuisance, annoyance, illegal or immoral use of the property

Two weeks' notice of proceedings required (but the landlord can specify in the notice a date for the commencement of proceedings which is less than two weeks, but not earlier than the date of service of the notice).[21]

The tenant, or anyone living in or visiting the property has been:

  • guilty of behaviour causing or likely to cause nuisance or annoyance to anyone living in, visiting or carrying out a lawful activity in the locality
  • (from 13 May 2014) guilty of behaviour causing or likely to cause nuisance or annoyance to the landlord or someone employed (whether or not by the landlord) in connection with the landlord's housing management functions. The behaviour is not restricted to the locality[22]
  • has been convicted for using the premises, or allowing them to be used, for illegal or immoral purposes
  • has been convicted of an indictable offence committed in the locality – this excludes a 'summary offence', ie a criminal offence that can only be tried in the magistrates' court.

For information about the mandatory ground for possession for antisocial behaviour see the page Mandatory ASB ground: Assured tenancies.

Where 'locality' applies it indicates a wider area than the immediate neighbourhood.[23] An offence committed prior to the start of the tenancy meets this ground for possession.[24]

When the court considers whether it is reasonable for a possession order to be made, it must consider:[25]

  • the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought
  • any continuing effect the nuisance or annoyance is likely to have on such persons
  • the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

If it is reasonable to make a possession order and the antisocial behaviour is serious and persistent, and/or the tenant commits a criminal offence, the order should only be suspended in exceptional cases.[26]

No antisocial behaviour on the tenant's part is necessary for the ground to apply. A possession order can be granted if the antisocial behaviour is solely attributable to a member of the tenant's household or visitor.[27] Although in considering whether it is reasonable to make, or suspend, a possession order the court should consider to what extent, if any, the tenant has sought to modify or control that person's behaviour[28] for example by evicting an adult child.

Each case is different and the degree of nuisance, its cause, frequency, severity, as well as whether the tenant has shown remorse and improved their behaviour are all important considerations, together with whether the condition of property contributed to the nuisance and better sound insulation would prevent its reoccurring.[29] If a tenant refuses medical treatment for mental health problems of which the nuisance was a consequence, the court may view this as evidence that the offending conduct will persist.[30]

The Chartered Institute of Housing has published Community Harm Statement, with related guidance, to help private registered providers of social housing to present evidence to the court as to the impact of antisocial behaviour on the neighbours and the community. This is a recognised template to support judicial and non-judicial actions against antisocial behaviour.

Ground 14A – Domestic violence

Two weeks' notice of proceedings required.

This ground only applies to assured tenancies granted by private registered providers of social housing (formerly registered social landlords) or charitable housing trusts. It can be used where the property has been occupied by a married couple, a couple who have entered into a civil partnership or a cohabiting couple (same-sex or opposite-sex), and one partner has left and is unlikely to return because of violence or threats of violence by the other towards her/him or a member of the family living with her/him.[31] If the partner who has left is the non-tenant, the landlord must take steps to serve her/him with a copy of the notice of seeking possession, unless the court decides that it is just and equitable to dispense with the notice[32] (note that a non-resident joint tenant must also be served with notice.) The violence must have been a cause of the partner leaving.[33] There is no requirement for the parties to be actually living together at the time of the violence (the perpetrator may be staying elsewhere), merely that they be in a relevant relationship.[34]

Ground 14ZA – Offence during a riot

Two weeks' notice of proceedings required.

The tenant, or an adult living in the property has been convicted of an indictable offence which took place during, and at the scene of, a riot anywhere in the UK.[35] The offence must have been committed on or after 13 May 2014.

An 'indictable offence' excludes offences that can only be tried in the magistrates' court (ie a 'summary offence').

A riot is defined as where 12 or more persons, who are present together, use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for her/his personal safety.[36]

Ground 15 – Deterioration of furniture

Two weeks' notice of proceedings required.

This is similar to ground 13, but covers deterioration of the condition of furniture belonging to the landlord that is caused by anyone living in the dwelling-house.

Ground 16 – Employee of landlord

Two months' notice of proceedings required.

The landlord or a previous landlord must have let the property in consequence of the tenant's employment, and the tenant's employment has now ceased. The landlord does not have to prove that s/he needs the property for a new employee, as is the case with regulated tenancies.

Ground 17 – Recovery of possession where grant is induced by false statement

Two weeks' notice of proceedings required.

This ground may be used where the tenant, or a person acting at her/his instigation, induced the landlord to grant the tenancy by false statement either knowingly or recklessly.[37] The ground can only be used against the original tenant, not a successor or assignee. The statement need not have been made to the landlord, so it might be possible to use the ground where someone makes a false statement to a local authority leading it to nominate her/him to a private registered provider of social housing.

Where the statement made was clearly material an inference will be drawn that the representation influenced the decision to grant the tenancy.[38] The court will also consider the nature and degree of the false statements. Flagrant lying in order to obtain accommodation will lead to a presumption in favour of a possession order being made.[39]

[1] Leeds and Yorkshire Housing Association v Vertigan [2010] EWCA Civ 1583.

[2] Pre-action Protocol for Possession Claims based on Rent Arrears, Civil Procedure Rules SI 1998/3132, as amended.

[3] Manchester CC v Romano [2004] EWCA Civ 834, [2004] 4 All E R 21; Liverpool CC v Slavin [2005] Legal Action, July 2005.

[4] OPDM, Improving the effectiveness of rent arrears management, 2005.

[5] Lewisham LBC v Adeyemi and Another (2000) 32 HLR 414, CA.

[6] Part 3, Sch.2, Housing Act 1988.

[7] Yewbright Properties Ltd v Stone (1980) 40 P&CR 402, CA.

[8] Warren v Austen [1947] 2 All ER 185, CA.

[9] Hill v Rochard [1983] 1 WLR 478, CA.

[10] Enfield LBC v French (1985) 17 HLR 211, CA.

[11] Watford Community Housing Trust v Personal Representatives of E Chalmers, Watford County Court, Legal Action April 2011.

[12] s.11 Housing Act 1988.

[13] Tickner v Clifton [1929] 1 KB 207, DC; Notting Hill Housing Trust v Jones [1999] L&TR 397, CA.

[14] Pre-action Protocol for Possession Claims by Social Landlords, Civil Procedure Rules SI 1998/3132, as amended.

[15] Woodspring DC v Taylor [1982] 4 HLR 95, CA.

[16] Brent LBC v Marks [1998] Legal Action, July, CA.

[17] for example, see Escalus Properties Ltd v Robinson [1996]; Sidney Trading Co v Finsbury Corp [1952] 1 All ER 460.

[18] Jones v Southwark LBC [2016] EWHC 457 (Ch); but see also Rochdale BC v Dixon [2011] EWCA Civ 1173.

[19] Pre-action Protocol for Possession Claims Based on Rent Arrears, Civil Procedural Rules SI 1998/3132, as amended.

[20] Consumer Rights Act 2015, previously Unfair Terms in Consumer Contracts Regulations SI 1999/2083.

[21] s.8 Housing Act 1988.

[22] Ground 14(aa) as inserted by s.98 Anti-social behaviour, Crime and Policing Act 2014: Anti-social behaviour, Crime and Policing Act 2014 (Commencement No 2, Transitional and Transitory Provisions) Order 2014 SI 2014/949.

[23] Manchester CC v Lawler (1998) 30 HLR.

[24] Raglan Housing Association Ltd v Fairclough [2007] EWCA 1087.

[25] s.9A Housing Act 1988; Birmingham CC v Ashton [2012] EWCA Civ 1557.

[26] Sandwell MBC v Hensley [2007] Civ 1425;Barking and Dagenham LBC v Bakare [2012] EWCA Civ 750.

[27] Greenwich RLBC v Tuitt [2014] EWCA Civ 1669; Portsmouth CC v Bryant [2000] 32 HLR 906, CA

[28] Greenwich RLBC v Tuitt [2014] EWCA Civ 1669; Knowsley Housing Trust v McMullen [2006] EWCA Civ 539.

[29] Sandwell MBC v Hensley [2007] Civ 1425; North Devon Homes v Batchelor [2008] EWCA Civ 840; Knowsley Housing Trust v (1) Prescott (2) Prescott [2009] EWHC 924 (QB); Curo Places Ltd v Walker [2018] EWHC 2462 (QB).

[30] Accent Peerless Ltd v Kingsdon and Kingsdon [2007] EWCA Civ 1314.

[31] Added to Sch.2 Housing Act 1988 by s.149 Housing Act 1996 and amended by para 43, Sch.8 Civil Partnership Act 2004.

[32] s.8A Housing Act 1988, as inserted by s.150 Housing Act 1996.

[33] Camden LBC v Mallett (2001) 33 HLR 204, CA.

[34] Metropolitan Housing Trust v Hadjazi [2010] EWCA Civ 750.

[35] as inserted by s.99 Anti-social behaviour, Crime and Policing Act 2014: Anti-social behaviour, Crime and Policing Act 2014 (Commencement No 2, Transitional and Transitory Provisions) Order 2014 SI 2014/949.

[36] s.1 Public Order Act 1986.

[37] Ground 17, Sch.2 Housing Act 1988 (inserted by s.102 Housing Act 1996).

[38] Waltham Forest LBC v Roberts [2004] EWCA Civ 940; Windsor and District Housing Association v Hewitt [2011] EWCA Civ 735.

[39] Shrewsbury and Atcham BC v Evans (1997) 30 HLR 123, CA.

Back to top