Assured tenancy discretionary grounds for possession

If the landlord relies on a discretionary ground, the court must decide if both:

• the landlord has proven that the ground applies

• it is reasonable to make a possession order

A landlord can use discretionary grounds to seek possession of an assured or assured shorthold tenancy. Most housing association tenants have an assured tenancy, and most private tenants have an assured shorthold tenancy.

Schedule 2 of the Housing Act 1988 sets out the grounds.

The landlord can use one or more discretionary grounds or combine them with mandatory grounds.

Reasonable to order possession

The court must decide whether it is reasonable to evict a tenant using a discretionary ground. 'Reasonable' in the context of possession proceedings means that the court considers the interests of the landlord, the tenant, and the public.

Relevant factors include:

• how serious the breach was and its effect on others

• if the tenant had an opportunity to remedy the breach

• the effect of eviction on the tenant and their household

• if there were any more breaches in the run up to the trial

• the reason for the tenant's breach of their tenancy agreement

The court takes into consideration the individual circumstances of each case. There might be specific factors to consider based on the specific ground the landlord uses.

Landlord's notice seeking possession on a discretionary ground

The landlord starts the possession process by serving a notice seeking possession, sometimes called a 'section 8' notice[1].

The court has the discretion to dispense with the requirement on the landlord to issue a valid notice if it is 'just and equitable' to do.[2]

Find out more about a section 8 notices.

Tenant's defence to a discretionary ground

A tenant might have a defence if they can provide the court with evidence that the landlord's ground has not been proved, the tenant has a counterclaim against the landlord, or it is not reasonable to order possession.

The tenant might be able to raise a public law defence if the landlord is a public body, or argue that possession proceedings amount to unlawful discrimination if the ground for possession is related to a disability.[3]

Find out more about the tenant's defence and counterclaim process.

Orders the court can make

The court might decide to make a possession order suspended on terms. The tenant has to comply with the terms of a suspended possession order to avoid being evicted.

The court can make an outright possession order against a tenant who repeatedly breaches their tenancy agreement, even if the individual breaches are small.[4]

Find out more about what orders the court can make.

The court can order a date for possession during a fixed term on any of the discretionary grounds apart from:[5]

• ground 9: Suitable alternative accommodation

• ground 16: Employee of the landlord

For all the other discretionary grounds, the court can only make a possession order to take effect during the fixed term if the tenancy agreement permits it.

The term in the tenancy agreement could allow the tenancy to be ended on the relevant ground by the landlord giving notice. The tenancy agreement might state it is a forfeiture or re-entry clause.[6]

The court can order possession on ground 9 if it is satisfied that both:

• the tenant has suitable alternative accommodation to move to, and

• the accommodation is available or will be available when the possession order expires

Accommodation offered by the local authority

A certificate from a local authority stating the authority will provide suitable accommodation to the tenant is conclusive evidence that suitable accommodation will be available.[7]

Accommodation offered by the landlord

The court must decide if alternative accommodation provided by the landlord is suitable for the tenant and their family. The landlord could provide a certificate from the local authority setting out the size and type of accommodation the authority would consider suitable for people with similar needs, and the court can take this into account when making its decision.

The new accommodation must be affordable for the tenant and give reasonably equivalent security of tenure to their current tenancy.[8]

The court should consider how the move could affect work commutes for the tenant and their family. For example, accommodation might not be suitable if the tenant would have a longer or more difficult commute.[9]

Accommodation is not suitable if it is statutorily overcrowded.[10] Find out more about overcrowding. The courts have held that accommodation can be suitable if it is smaller than the tenant's current housing.[11]

The court can consider environmental factors. For example, accommodation might not be suitable if the tenant has to move from a quiet residential area to a busy street.[12]

If the current property is furnished, furniture that is similar or reasonably suitable must be provided in the alternative accommodation.[13]

Tenant's removal expenses

The tenant is entitled to reasonable removal expenses from the landlord when a possession order is made on ground 9.[14]

Possession during a fixed term on ground 9

A possession order granted on ground 9 cannot take effect during a fixed term.[15]

Notice period for ground 9

The minimum notice period for ground 9 is two months.[16]

Reasonable to order possession on ground 9

The court must be satisfied that it is reasonable to order possession on ground 9, even if the landlord shows the new accommodation is suitable.

The court can order possession on ground 10 if it is satisfied some rent was lawfully due from the tenant at the date the notice was served and when the possession proceedings were issued.

There is no minimum amount of rent arrears that must be owed for a landlord to use ground 10.

Find out more about rent arrears possession.

Rent lawfully due from the tenant

To count as arrears for ground 10, the rent must be lawfully due from the tenant. That means the tenant must owe it. The rent is not lawfully due if a predecessor in the tenancy incurred the arrears. For example, because the tenancy was assigned, or the tenant is a successor.[17]

The rent must be due for the current tenancy. It cannot be lawfully due from a previous tenancy.

Charges for other services such as water supply can count as rent lawfully due. The tenancy agreement must state that these charges make up part of the rent. Read more about what rent covers on Shelter Legal.

Combination of rent arrears grounds

Claims on ground 10 usually include ground 11 (persistent delay in paying rent) and the mandatory rent arrears ground 8. At the court hearing, the landlord must tell the judge whether they want to proceed on ground 8 or the discretionary grounds 10 and 11.

Read more about mandatory grounds for possession of assured tenancies.

Possession during the fixed term on ground 10

An order for possession on ground 10 can take effect during a fixed term if a term in the tenancy agreement allows it.[18]

Notice period for ground 10

The minimum notice period for ground 10 is two weeks.

The court can dispense with the requirement for notice if it is just and equitable.

Reasonable to order possession on ground 10

The court must be satisfied that it is reasonable to make a possession order on ground 10. To decide if it is reasonable, the court can take into account:[19]

• the tenant's payment record

• the cause of the rent arrears

• whether the tenant has breached the tenancy in other ways

• whether the tenant has taken steps to clear the arrears

Tenants who have reduced their arrears since the claim was issued or maintained an arrangement with the landlord can argue that it is not reasonable to order possession because they are reducing the debt without a possession order. In this case, the court might agree to adjourn the case on terms.

The court can order possession on ground 11 if the tenant has persistently paid their rent late.

The court can order possession if there are no arrears on the day of the court hearing.

Find out more about rent arrears possession.

Combination of rent arrears grounds

In practice, claims on ground 11 usually include ground 10 (rent arrears), and the mandatory rent arrears ground 8. Including ground 11 allows the landlord to proceed with the claim if the tenant has cleared the arrears shortly before the court hearing.

At the court hearing, the landlord must tell the judge whether they want to proceed on ground 8, or the discretionary grounds 10 and 11.

Read more about mandatory grounds for possession of assured tenancies.

Possession during the fixed term on ground 11

An order for possession on ground 11 can take effect during a fixed term if a term in the tenancy agreement allows it.[20]

Notice period for ground 11

The minimum notice period for ground 11 is two weeks.

The court can dispense with the requirement for notice if it is just and equitable.

Reasonable to order possession on ground 11

The court must be satisfied that it is reasonable to order possession on ground 11.

Where the rent is not in arrears at the hearing and the landlord relies on ground 11 alone, the court might consider factors like the impact of late payment on the landlord's finances. For example, whether the tenant's late payments have caused the landlord to breach their mortgage agreement.

The court can order possession on ground 12 if it is satisfied that the tenant has breached a term of their tenancy conditions. Ground 12 does not cover non-payment of rent.

Common breaches of a tenancy agreement include:

• smoking

• taking in a lodger

• keeping a pet

Ground 12 is normally used for a breach of an express term that is written into the agreement. Implied terms, such as keeping the property in a reasonable state of repair, are covered by other grounds.

Possession during the fixed term on ground 12

An order for possession on ground 12 can take effect during a fixed term if a term in the tenancy agreement allows it.[21]

Notice period for ground 12

The minimum notice period for ground 12 is two weeks.

The court can dispense with the requirement for notice if it is just and equitable.

Reasonable to order possession on ground 12

The court must be satisfied that it is reasonable to order possession on ground 12.

The tenant could argue it is not reasonable to order possession if they have ceased to breach the agreement. For example, by asking a lodger to move out.

The court can order possession on ground 13 if it is satisfied the tenant, or a person living with them, has caused the condition of the property or common parts to deteriorate.

This includes damage caused by failing to act. For example, ground 13 might apply where a tenant has not reported repair issues to the landlord and as a result the condition of the property deteriorates.

A landlord can use ground 13 if the damage has been caused by a lodger or subtenant, but not if it was caused by a visitor. If the lodger or subtenant caused the deterioration, the landlord must show that the tenant did not take reasonable steps to evict their lodger or subtenant.

What are common parts?

Common parts includes areas of the building shared by two or more tenants. For example, communal stairs, hallways, rubbish chutes and other facilities in a block of flats.

Disability discrimination

A landlord might use ground 13 against a tenant with serious hoarding or other mental health disorders. The tenant might have a discrimination defence.

Find out more about disability discrimination defences.

Possession during a fixed term on ground 13

An order for possession on ground 13 can take effect during a fixed term if a term in the tenancy agreement allows it.[22]

Notice period for ground 13 

The minimum notice period for ground 13 is two weeks.[23]

Reasonable to order possession on ground 13

The court must be satisfied that it is reasonable to order possession on ground 13.

The court can order possession on ground 14 if the tenant, or anyone living in or visiting the property has either:

• caused nuisance or annoyance to anyone living in, visiting or carrying out a lawful activity in the locality

• caused nuisance or annoyance towards the landlord or someone employed (whether or not by the landlord) in connection with the landlord's housing management function

• been convicted of using the premises, or allowing them to be used, for illegal or immoral purposes

• been convicted of a more serious offence in the locality

More serious offences are those that can only be tried in the Crown Court.

'Locality' means a wider area than the immediate neighbourhood.[24]

Ground 14 can be used if the tenant committed an offence before the tenancy started.[25]

Causing nuisance or annoyance includes behaviour likely to cause it.

Excessive noise is a common reason for landlords to use ground 14.

Find out more about nuisance and antisocial behaviour.

What the court must consider

The relevant factors include:[26]

• the seriousness, frequency and severity of the tenant's behaviour

• the effect that the nuisance or annoyance has had on other people

• whether the tenant has shown any remorse and modified their behaviour

• the effect that the nuisance or annoyance would be likely to have on others if it happened again

• whether the condition of the property, for example inadequate sound insulation, might be a contributing factor

A possession order on ground 14 should only be suspended in exceptional cases if the tenant's antisocial behaviour is serious and persistent or the tenant has committed a criminal offence.[27]

If the nuisance behaviour is a consequence of a mental heath condition the tenant refuses treatment for, the court might view this as evidence that the conduct will persist.[28]

Ground 14 can be used if antisocial behaviour is caused by a member of the tenant's household or a visitor. The court might consider if the tenant tried to control the person's behaviour, for example by asking them to move out.[29]

Housing associations should follow their policies for dealing with antisocial behaviour.

In more serious cases of antisocial behaviour, especially if there has been an order or a conviction for a more serious offence, the landlord can use ground 7A which is mandatory.

Find out more about mandatory possession grounds for assured tenancies.

Possession during a fixed term on ground 14

An order for possession on ground 14 can take effect during a fixed term if the tenancy agreement allows it.[30]

Notice period for ground 14

The landlord can apply for a possession order as soon as a notice on ground 14 is served on the tenant.[31]

The notice must still give a date when the landlord requires the tenant to leave the property and say that court proceedings may be started immediately.

Reasonable to order possession on ground 14

The court must be satisfied that it is reasonable to order possession on ground 14.

The court can order possession on ground 14A if one member of a couple has left the property because of domestic violence from the other partner and is unlikely to return.[32] Domestic violence includes threats of violence. Domestic abuse is not limited to physical violence.

The landlord can also use ground 14A if the perpetrator targets their partner's family member who lives with the couple and this causes their partner to leave.

A couple means people who are:

• married

• in a civil partnership

• living together as partners

At least one member of the couple must be a tenant.

Ground 14A can be used if the abusive partner lives elsewhere while engaging in the behaviour that makes their partner leave.[33]

Find out more about the definition of domestic abuse and housing rights of domestic abuse survivors.

Only private social landlords and charitable housing trusts can use ground 14A.

Possession during a fixed term on ground 14A

An order for possession on ground 14A can take effect during a fixed term if the tenancy agreement allows it.[34]

Notice period for ground 14A

Two weeks' notice of proceedings required.[35]

The landlord must take steps to serve a copy of the notice on:[36]

• the partner who has left

• any joint tenant who lives elsewhere

The court can waive the notice requirement if it considers it 'just and equitable'.[37]

Reasonable to order possession on ground 14A

The court must be satisfied that it is reasonable to order possession on ground 14A.

The court can order possession on ground 14ZA if it is satisfied that both:

• the tenant or an adult who lives in the property has been convicted of a serious offence

• the offence took place during a riot in the UK

The conviction must have been made by the Crown Court. Less serious offences that are heard in the Magistrates' Court are not included.

A riot means 12 or more people are in the same place, use or threaten unlawful violence for a common purpose, and their actions would cause someone to fear for their personal safety.[38]

Possession during a fixed term on ground 14ZA

An order for possession on ground 14ZA can take effect during a fixed term if a term in the tenancy agreement allows it.[39]

Notice period for ground 14ZA

The minimum notice period is two weeks.[40]

Reasonable to order possession on ground 14ZA

The court must be satisfied that it is reasonable to order possession on ground 14ZA.

The court can order possession on ground 15 if it is satisfied that furniture provided with the tenancy has been damaged by the tenant or someone else living in the property. If the furniture has been damaged by a lodger or subtenant, the landlord must show that the tenant did not take reasonable steps to evict their lodger or subtenant.

This ground can only be used in a furnished tenancy.

Possession during a fixed term on ground 15

An order for possession on ground 15 can take effect during a fixed term if a term in the tenancy agreement allows it.[41]

Notice period for ground 15

The minimum notice period is two weeks.[42]

Reasonable to order possession on ground 15

The court must be satisfied that it is reasonable to order possession on ground 15.

The court can order possession on ground 16 when both:

• the property was let for the tenant's employment by the landlord, or by a previous landlord under the same tenancy, and

• the tenant's employment has ended

The landlord does not have to prove they need the property for a new employee.

Ground 16 applies when an employee rents accommodation from their employer but does not need to live there to do their job. Find out more about service tenants.

Agricultural workers

Some farm workers employed by their landlord have special protection. Qualifying workers have an assured agricultural occupancy if their agreement started on or after 15 January 1989.

A landlord cannot use ground 16 when a tenant is an assured agricultural occupier.[43]

Find out more about agricultural occupiers.

Possession during a fixed term on ground 16

A possession order granted on ground 16 cannot take effect during a fixed term tenancy.[44]

Notice period for ground 16

The minimum notice period for ground 16 is two months.[45]

Reasonable to order possession on ground 16

The court must be satisfied that it is reasonable to order possession on ground 16.

The court can order possession on ground 17 if the landlord granted the tenancy as a result of a false statement made by the tenant, or by a person acting at the tenant's instigation. This includes situations where a statement was known to be false, or when a statement is made recklessly and turns out to be false.

A failure to provide information could be a false statement. For example, a person might apply for social housing and agree to inform the landlord of any changes to their circumstances that affects their housing need. A failure to disclose new information to the prospective landlord could be a false statement.[46]

Where a statement made was clearly material to the landlord's decision to grant the tenancy, the court can conclude the statement influenced the decision.[47]

When the tenancy has been assigned or succeeded to

Ground 17 can only be used against the original tenant. For example, a landlord cannot seek possession on ground 17 where the original tenant obtained the tenancy by deception and then assigned it to an innocent person.[48]

Possession during a fixed term on ground 17

An order for possession on ground 17 can take effect during a fixed term if a term in the tenancy agreement allows it.[49]

Notice period for ground 17

The minimum notice period for ground 17 is two weeks.[50]

Reasonable to order possession on ground 17

The court must be satisfied that it is reasonable to order possession on ground 17.