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Discretionary grounds for ending regulated tenancies

This content applies to England

For the court to order possession on one of the following grounds the landlord must prove that the ground exists and the court must be satisfied that is reasonable to order possession.

The grounds for possession are sometimes referred to as cases since, with one exception, they are listed in Schedule 15 of the Rent Act 1977 as Cases 1 to 20.

Reasonableness

The courts have wide discretion in deciding whether it is reasonable or not to order possession on the discretionary grounds. The court should consider the effects on both landlord and tenant of making an order and of not making an order.[1]

The types of circumstances which may influence a court's decision include the seriousness of the breach, whether it was deliberate or innocent, the tenant's past history including how long s/he has lived there, whether it can be said that the landlord acquiesced in the tenant's conduct and his/her past history and the hardship likely to be caused to the landlord and tenant. In addition, the court has wide powers to postpone and suspend possession orders and there is no limit to the amount of time that can be allowed before possession orders take effect.

Suitable alternative accommodation

This ground is not listed among the other cases in Schedule 15 and therefore does not have a case number. In order to prove this ground, the landlord can provide a certificate from a local authority that confirms that they will house the tenant. Or s/he can provide suitable accommodation him/herself or via another private landlord, in which case the accommodation must either be a regulated tenancy, which must not be subject to one of the mandatory grounds, or one with security of tenure which offers similar protection.

'Suitable' means suitable to the needs and means of the tenant in relation to proximity to work and its similarity to the existing accommodation.

Case 1 – rent arrears or breach of tenancy agreement

For rent arrears, some rent must be lawfully due when possession proceedings commenced. If the tenant pays off the arrears before the hearing, there will still be a ground for possession but it is unlikely to be reasonable to make the order. In the case of breach of tenancy agreement, it is unlikely to be reasonable to make an order if the breach has been remedied.

Case 2 – nuisance and annoyance

The tenant or anyone living in the property must be guilty of nuisance or annoyance to adjoining occupiers, or must have been convicted for using the premises or allowing the premises to be used for illegal or immoral purposes.

Case 3 – deterioration in the condition of the property

The tenant, or a member of her/his family or a lodger or subtenant, must be guilty of an act or inaction that has caused the condition of the property to deteriorate. If the deterioration has been caused by the lodger or subtenant the tenant must have failed to take reasonable action to remove them from the property.

Case 4 – deterioration of furniture

This is similar to Case 3 but covers deterioration of the condition of furniture that is caused by anyone living in the property.

Case 5 – tenant's notice to quit

This covers the situation where the tenant has given notice to quit and changes her/his mind about leaving. To gain possession, the landlord must have entered into a contract to sell it or re-let the property as a result.

Case 6 – assignment or subletting without the landlord's consent

This arises when the tenant assigns or sublets the whole of the premises to another person without the landlord's consent. Usually the tenant will have lost her/his statutory tenancy by doing this since s/he will be no longer resident.

Case 7 (repealed in 1980)

Case 8 – employee of landlord, accommodation required for new worker

The landlord or previous landlord must have employed the tenant; the property must have been let in consequence of the employment, and it must reasonably be required by a new full time worker. If it is proved later that the landlord misrepresented or concealed facts to the court in order to gain possession, the court has the power to order the landlord to pay damages to the tenant.

Case 9 – landlord requires the property for occupation by him/herself or relatives

This does not apply if the landlord purchased the property with the tenant already in occupation. The landlord's relatives covered by this case include children over 18, parents and parents of her/his spouse or civil partner.[2] The landlord must require the occupation for a reasonable length of time. The Rent Act 1977 also provides for a particular defence to this case known as 'greater hardship'. The court must consider whether greater hardship will be caused to the landlord or tenant by granting or refusing to grant the order. If it is proved later that the landlord misrepresented or concealed facts to the court in order to gain possession, the court has the power to order the landlord to pay damages to the tenant.

Case 10 – overcharging of subtenant by tenant

This ground applies when the First-tier Tribunal (Property Chamber) has fixed the rent paid by a subtenant of part of the property and the tenant has overcharged the subtenant.

Case 10A - tenant or occupier has no right to rent

This ground applies where 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.[3]

This ground does not apply where the Home Office has served notice that all of the tenants or occupiers have no right to rent. A Home Office notice stating that all the occupiers have no right to rent has the effect of converting the Rent Act protected tenancy to a tenancy that is excluded from the protection of the Protection from Eviction Act 1977. In this case the landlord may terminate the tenancy by serving 28 days' notice on a prescribed form - see the page Right to rent immigration checks for details.

[1] Whitehouse v Loi Lee [2009] EWCA Civ 375.

[2] para.14, sch.8 Civil Partnership Act 2004.

[3] from 1 December 2016, case 10A, sch.15 Rent Act 1977 inserted by s.41(6) Immigration Act 2016.

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