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Mandatory grounds: Assured tenancies

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Mandatory grounds for possession.

Introduction

The mandatory grounds for possession relating to assured tenants can be found in schedule 2 of the Housing Act 1988.

Prior notice grounds

The first five mandatory grounds are 'prior notice grounds', whereby the landlord has to inform the tenant in writing before the start of the tenancy that s/he might, in the future, wish to regain possession using that ground. On grounds 1 and 2 the court has discretion to waive the prior notice requirement if it is just and equitable to do so.

Particulars of claim

A landlord using mandatory grounds must ensure that they do more than simply state 'ground 8', for example, in the particulars of claim. They must specify the full text of the ground relied upon. In two cases where the grounds were stated rather than specified, the claims for possession were dismissed; it was held that the requirements of Practice Direction 55 under the Civil Procedure Rules had not been met.[1]

Power to dispense with notice

The court has the discretion to dispense with the requirement on the landlord to issue a valid notice seeking possession (NSP) if it is just and equitable to do so although this does not apply to possession sought under ground 8.[2]

See the page on Notices: Assured tenancies for further information about NSPs.

Public law and human rights defences

If the landlord follows the correct procedure and a mandatory ground is made out (proved) the court must make an outright possession order.[3] However, the Supreme Court has held that the eviction of an tenant is an interference with the right to respect for her/his home under Article 8 of the ECHR, and that the county court has the power to assess the proportionality of making an order against an introductory tenant, a non-secure tenant and a local authority demoted tenant, where a seriously arguable defence is put forward.[4] Currently it is uncertain whether assured tenants of private registered providers of social housing (PRPSH's) can also raise such a defence, and if the county court states it does not have the power to hear a defence, it should be asked to adjourn the claim for possession pending an application for judicial review. For more information see the page Public law and human rights defences in possession proceedings .

Pre-action protocol

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

Ground 1 - Owner occupation (prior notice ground)

Two months' notice of proceedings required.

There are two different situations where this ground could apply:

  • The landlord (or one of joint landlords) lived in the property as her/his only or principal home at some time before the start of the tenancy.
  • The landlord requires it for her/himself or for her/his spouse as an only or principal home, providing s/he has not purchased the house during the tenancy.

There is no need for prior residence for the second part of the ground and there is no need for intended residence for the first part.

In one case, the courts found that prior oral, rather than written, notice was sufficient where the tenant was quite clear about the possibility of the landlord returning to live in the property.[5]

Ground 2 - Repossession by lender (prior notice ground)

Two months' notice of proceedings required.

The property is subject to a mortgage or charge granted before the start of the tenancy and the lender is entitled to exercise a power of sale requiring vacant possession. See the section Tenants of mortgagors for more information.

Ground 3 - Out of season holiday let (prior notice ground)

Two weeks' notice of proceedings required.

The tenancy is for a fixed term of not more than eight months, and at some time during the 12 months prior to the start of the tenancy, it was occupied for the purpose of a holiday. It is unlikely that the landlord's own holiday occupation would suffice, as it must be under a right to occupy for a holiday rather than a general entitlement to occupy.

Ground 4 - Lets to students by educational institutions (prior notice ground)

Two weeks' notice of proceedings required.

The tenancy is for a fixed term of not more than 12 months, and during the 12 months prior to the start of the tenancy, the accommodation must have been a student letting excluded from assured tenancy status - see the section on Tenancies that cannot be assured.

Ground 5 - Minister of religion (prior notice ground)

Two months' notice of proceedings required.

The property is held for use by a minister of religion to perform the duties of her/his office, and is required for occupation by a minister of religion.

Ground 6 - Redevelopment

Two months' notice of proceedings required.

The landlord must show s/he intends to demolish, reconstruct or carry out substantial works to the whole or a considerable part of the property, and cannot reasonably carry out the work while the tenant remains in residence. The landlord must prove that either the tenant will not agree to a variation in the terms of the tenancy to grant the landlord access, or to accept a tenancy of a reduced part of the house or the nature of the work is such that variations are not practical. Landlords who have purchased the property during the tenancy cannot use this ground. Nor can it be used against a tenant who succeeded to the assured tenancy on the death of a regulated tenant (see the section on Succession).

There is no requirement for the landlord to provide alternative accommodation as there is with the similar ground for secure tenants under the Housing Act 1985, however, the landlord will be liable to pay reasonable removal expenses.[6] This ground can also be used where a landlord who has leased the property to a housing association (that has sublet to the tenant) intends to carry out substantial works.

Ground 7 - Death of assured tenant

Two months' notice of proceedings required.

The tenancy has been passed on by the will or intestacy (where there is no will) of the former tenant. Possession proceedings must have started no later than 12 months after the death of the former tenant or, if the court directs, the date the landlord (or one of them in the case of joint landlords) first became aware of the death of the former tenant. Case law makes it clear that the term 'possession proceedings' refers to court proceedings. Service of a notice alone will not be enough for the landlord to show that s/he has started possession proceedings during the 12-month period.[7] The landlord can accept rent during this period without creating a tenancy, unless there is an agreement in writing to change the terms of the tenancy.

Before 1 April 2012 this ground only applied where the tenancy was periodic or statutory periodic, from this date it is also available against a fixed-term tenancy. [8]

Ground 7A - Antisocial behaviour

Where any one of five conditions relating to antisocial behaviour are met, the court must award possession if the landlord has served a notice of seeking possession.

See the page Mandatory ASB ground: assured tenants for more information. For the notice requirements, see Notices: assured tenancies

Ground 7B - No right to rent

Two weeks' notice of proceedings is required.

The Home Office has served notice on the landlord that one or more (but not all) of the tenants or occupiers in the property have no 'right to rent' because of their immigration status.[9]

Where this ground is made out in relation to a joint tenancy when at least one tenant has the right to rent, the court, as alternative to awarding possession, can order that the disqualified tenant's interest is transferred so that it is held by a tenant (or joint tenants) who qualifies under the right to rent provisions.[10] See Orders the court can make.

This ground does not apply where the Home Office has served notice that all of the tenants or occupiers have no right to rent, because the assured tenancy is converted to a tenancy that is excluded from protection under the Protection from Eviction Act 1977. In such a case the landlord may serve 28 days' notice on a prescribed form. See the section 'security of tenure' on the page Right to rent immigration checks for details.

Ground 8 - Serious rent arrears

Two weeks' notice of proceedings required. The court does not have the power to waive the requirement for the notice to be served.[11]

At the time of the notice and at the time of the hearing, at least:

  • eight-weeks' rent is owed if paying weekly or fortnightly
  • two-months' rent is owed if paying monthly
  • three-months' rent is owed if paying quarterly, or
  • three-months' rent is owed if paying annually.

If the tenant has reduced her/his arrears below the specified amount by the time of the court hearing, possession under this ground will not be granted. However, it has been decided that it is not legitimate to adjourn a ground 8 possession claim to enable a tenant to reduce arrears below the eight-week threshold, unless there are exceptional circumstances. Arrears attributable to maladministration on the part of a housing benefit authority are not considered to be an exceptional circumstance.[12]

Where a landlord that is a private registered provider of social housing (PRPSH) regulated by the Housing Corporation seeks possession under this ground, guidance has been issued as to the circumstances when possession should be sought using ground 8.[13] However, the courts have held that this guidance is in the nature of a target duty, and there is no enforceable legitimate expectation that a PRPSH should not rely upon ground 8.[14]

For further information, see the section on PRPSHs and housing associations.

[1] Bayliss v Martin; Places for People v Green, Sheffield County Court, [2008] 11 March 2008, unreported. See SHLU, June 2008.

[2] s.8(1)(b) and s.8(5) Housing Act 1988.

[3] s.7(3) Housing Act 1988 and s.89 Housing Act 1980.

[4] Manchester City Council v Pinnock [2010] UKSC 45; Hounslow LBC v Powell: Leeds CC v Hall: Birmingham CC v Frisby [2011] UKSC 8.

[5] Fernandes v Parvardin (1982) 5 HLR 33.

[6] s.11 Housing Act 1988

[7] Osada v Shepping [ 2000] 2 EGLR 38, (2001) 33 HLR 146.

[8] Ground 7, Sch.2 Housing Act 1988, as amended by s.162(5) Localism Act 2011.

[9] Ground 7B, Sch.2 Housing Act 1988 as amended by s.41(2) Immigration Act 2016 (in force with effect from 1 December 2016).

[10] s.10A Housing Act 1988 as amended by s.41(5) Immigration Act 2016 (in force with effect from 1 December 2016).

[11] s.8(5) Housing Act 1988.

[12] North British Housing Association v Matthews [2004] EWCA Civ 1736.

[13] Circular 07/04 Tenancy Management: Evictions and Eligibility.

[14] R (on the application of Weaver) v London & Quadrant Housing Trust [2008] EWHC 1377 (Admin).

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