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Possession during the fixed term

This content applies to England

Grounds which entitle to a court order to take effect during a fixed term.

A landlord can apply for possession during the fixed term of an assured tenancy using any ground for possession in Schedule 2 of the Housing Act 1988.

However, any order for possession granted by a court during the fixed-term tenancy must expire after the end of the fixed-term period, unless:[1]

  • the landlord uses grounds 2, 7 (in England only), 7A, 7B, 8, 10 to 15, or 17
  • there is a clause in the tenancy agreement allowing it to be brought to an end in the circumstances specified in the ground -  NB where ground 7B is used the landlord does not need a specific clause in the tenancy[2].

There is no case law that clarifies whether the clause in the tenancy agreement needs to specify the particular grounds, or whether a general clause will suffice, eg a clause that allows for the fixed term to be terminated if the rent is more than 14 days in arrears.

Although these clauses are often called forfeiture or re-entry clauses, they do not operate in the same way as in other forms of tenancy. This is because assured tenancies are excluded from the normal forfeiture provisions, with the result that there is no right to relief from forfeiture.[3] The forfeiture clause can therefore only be used if one of the grounds for possession allowable during the fixed term is to be used.

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

[1] s.7(6) Housing Act 1988, as amended by para.18(4), Sch.11, Anti-social behaviour Crime and Policing Act 2014.

[2] s.7(6)(b) Housing Act 1988 as amended by s.41(3)(d) Immigration Act 2016.

[3] s.45(4) Housing Act 1988.

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