Ground 8 possession

A landlord can issue a claim in the County Court to gain possession of an assured or assured shorthold tenancy if they state a ground for possession. Most private tenants are assured shorthold tenants. Most housing association tenants are assured tenants.

A ground is a legal reason for the court to make a possession order. The legal reason for ground 8 is serious rent arrears.

The landlord must serve a notice on the tenant before they can begin court proceedings for possession. The notice is given under section 8 Housing Act 1988.

Read more about the possession process for rent arrears claims on Shelter Legal.

A landlord can use ground 8 to gain possession of a tenancy if the tenant owes more than a minimum sum of rent arrears.

Minimum sum of rent arrears to use ground 8

How much the tenant must owe depends on how often they pay rent. Ground 8 applies if the tenant owes at least:[1]

• eight weeks' rent if they pay weekly or fortnightly

• two months' rent if they pay monthly

• three months' rent if they pay quarterly or yearly

When the arrears must be outstanding

The minimum amount of rent arrears must be outstanding at the notice date and at the court hearing.

The court hearing date is the date the claim is heard. If a hearing is listed and then adjourned, the arrears must be outstanding at the adjourned hearing.

Reduction in arrears before the court hearing

If the tenant reduces the amount of arrears below the minimum on the day of the court hearing but before the case is heard, the landlord cannot proceed on ground 8.

The landlord can proceed on ground 8 if the arrears fall below the minimum sum before the court hearing but then increase again. This includes if the arrears did not meet the minimum threshold when the claim form was issued.

Pre-action protocol for social landlords

A housing association seeking to rely on ground 8 should write to the tenants before it issues a possession claim. It could include this letter with the notice seeking possession.

The landlord should:[2]

• explain why they intend to seek possession

• ask the tenant to notify them of any personal circumstances or other matters they want to be taken into account

• give clear time limits for responses

The housing association landlord is expected to consider the tenant's representations before starting the claim. If it decides to proceed, the landlord must confirm it has asked the tenant for representations, and give brief reasons for bringing the claim.

The landlord's failure to comply with the pre-action protocol cannot prevent the court from making a possession order on a mandatory ground.[3] The court can consider a landlord's failure to comply when it makes an order for costs.

Possession during the fixed term

The court can fix a date for possession on ground 8 during a fixed term if the tenancy permits it.[4]

Read more about possession during the fixed term in assured tenancy mandatory grounds.

A landlord must serve a notice seeking possession on an assured or assured shorthold tenant before they begin possession proceedings.[5]

Landlord must serve a valid notice

The court has no discretion to dispense with notice in a ground 8 case.[6] The landlord is not entitled to a possession order on ground 8 if they served an incorrect notice or a notice containing errors.

The tenant or their representative can ask the court to dismiss the claim if the notice:

• contains factual errors

• is not in the prescribed form

• does not state the ground in full

• does not give the tenant two weeks' notice

• is served when the tenant owes less than the minimum sum of arrears

• is served during a breathing space or mental health crisis moratorium

The court can allow the landlord to proceed on grounds 10 and 11, if they are included in the claim.[7] The court must be satisfied that it is just and reasonable to dispense with notice.

Notice in a prescribed form

The notice must be in a prescribed form or a form substantially to the same effect which contains everything in the prescribed form.[8]

The prescribed form is sometimes updated. The court could dismiss a claim if the landlord has not used the correct version.

The current version of Tenancy form 3 is available on the Gov.uk website.

State the ground in full

The notice must specify the ground and the particulars of it.[9]

The notice should state the wording of the ground in full. In cases where a notice does not follow the exact form of words set out in ground 8, the court must decide if it is similar enough to be substantially to the same effect.

One Court of Appeal case held that a notice that omitted the words 'rent lawfully due' was not valid.[10] Another Court of Appeal case allowed a notice that said 'rent owed' instead of 'rent lawfully due' because the meaning was clear.[11]

Read more about section 8 notices for assured tenancies.

Minimum sum of rent arrears

The tenant must owe at least the minimum sum of rent arrears when the notice is served.[12] This is normally eight weeks' or two months' arrears.

At least two weeks notice

The notice must give the tenant at least two weeks before possession proceedings can start.[13]

Breathing space moratoriums

The landlord must not serve a notice during a tenant's breathing space or mental health crisis moratorium.[14]

A landlord must not serve notice, issue a claim, or apply for an eviction warrant during a moratorium.

Find out more about possession proceedings during breathing space on Shelter Legal.

A landlord who serves notice on the mandatory ground 8 usually includes discretionary grounds 10 and 11 on the notice and the claim form.

Grounds 10 and 11 cover rent arrears in assured and assured shorthold tenancies.[15]

Ground 10 applies when some rent is due and unpaid. A landlord can use ground 10 as long as some rent is lawfully due. There is no minimum sum of arrears to use ground 10.

Ground 11 covers persistent delays in paying rent. No rent arrears need to be outstanding for a landlord to use ground 11, as long as there have been delays in paying rent.

Read more about discretionary grounds for possession of assured tenancies on Shelter Legal.

Which ground the court considers at the hearing

At the court hearing, the landlord or their representative must tell the judge on which ground they want to proceed.

A landlord could proceed on ground 10 or 11 in cases where the court cannot order possession on ground 8.

This might happen if the tenant has reduced the arrears below the threshold before the hearing, or if the landlord has served a defective notice but the court allows them to proceed.

Court has discretion on grounds 10 and 11

Grounds 10 and 11 are discretionary. That means the court has discretion whether to make a possession order.

If the landlord proceeds on grounds 10 and 11, the tenant can argue it is not reasonable to make a possession order or ask for possession to be suspended on payment terms.[16]

Read more about discretionary grounds for possession of assured tenancies.

When the landlord proceeds on ground 8 at the hearing, the court can make an order to:

• grant outright possession

• give directions to the parties to hear a defence

• adjourn the claim for a procedural reason

• dismiss the claim

The court cannot make a suspended possession order or adjourn the claim to allow the tenant time to pay.

Outright possession order

The court must make a possession order if:[17]

• the landlord has given the correct notice

• the amount of rent arrears exceeded the threshold on the date the notice was given and the day of the hearing

• the tenant cannot contest the level of arrears

The court must fix a date for possession no later than 14 days from the date of the hearing.[18]

The court can extend the date for possession up to 42 days from the hearing date in cases where the tenant would suffer exceptional hardship. It cannot postpone the date for possession beyond 42 days in any circumstances.

Dismiss the claim

The court can dismiss (or strike out) the claim if the landlord is not entitled to possession.

This could happen if the landlord served a defective notice, or the arrears did not meet the threshold on the day the notice was served or the day of the hearing.

In practice, many landlords proceed on discretionary rent arrears grounds if they can. This means the tenant can argue it is not reasonable to make a possession order, or ask for possession to be suspended on terms.

The court cannot:[19]

• make a suspended possession order

• adjourn the claim on payment terms

• adjourn the claim to a fixed date to resolve benefits or other financial issues once it is satisfied the ground has been made out

The court does not have discretion to allow the tenant time to pay because ground 8 is a mandatory ground.

No consideration of reasonableness

The court does not consider whether it is reasonable to make a possession order on ground 8.[20] If the court is satisfied the ground has been made out, it must grant the landlord a possession order.

The court can grant an adjournment to allow more time to deal with the claim.

Procedural adjournment

The court has a general power to adjourn the claim at any point before it is satisfied the landlord is entitled to possession.[21] It can exercise this power if necessary to manage the case, either before the day of the hearing or on the day before the case is decided.

For example, the court could adjourn on the day of the hearing because:

• the judge is unavailable

• a party cannot attend

• the tenant has an arguable defence

The court cannot grant a procedural adjournment to allow the tenant to change the facts of their case. For example, to reduce the amount of arrears or resolve a benefit claim. This is still the case if the DWP or local authority housing benefit department has delayed paying the claim.[22]

In practice, a landlord might agree to ask for an adjournment if the tenant is due a lump sum of benefits or other income that will clear or significantly reduce the arrears.

Tenant's defence filed before the hearing

The court can adjourn the claim for case management directions if the tenant has filed a defence before the hearing.

Court directions will set out the timescales for filing certain documents, for example, witness statements. The court allocates the case to a track.[23]

The tenant must follow the judge's directions. They can apply to court for an extension of time if necessary.

Tenant's defence raised at the hearing

The court can grant an adjournment to allow the tenant more time to file a defence.[24]

The tenant must request permission to file a defence before the judge has been satisfied the landlord is entitled to possession. This means the tenant or their representative must alert the judge immediately after the hearing starts before ground 8 has been made out.

When deciding whether to allow the tenant more time to file a defence, the court could consider:

• the nature of the tenant's defence

• whether the defence would defeat the possession claim, if successful

• what steps the tenant has taken to raise their defence before the hearing

The court can consider whether any counterclaim would reduce the arrears below the threshold for ground 8.[25]

A successful defence, or defence and counterclaim, is normally the only way a tenant can defeat a ground 8 claim.

Defective notice or claim form

The court has no power to dispense with notice in a ground 8 claim. The claim must be dismissed unless the landlord can proceed on another ground.

The claim form must state the grounds for possession.[26] A County Court held that the claim form must specify the ground for possession and the particulars, following the same rules as the notice.[27]

Read more about section 8 notices for assured tenancies.

Rent not lawfully due

To count as rent arrears for ground 8, the rent must be lawfully due from the tenant. That means it must be due from the current tenant, under the current tenancy.[28]

Rent is a regular, contractual payment that a landlord is entitled to receive from a tenant in return for use and occupation of the premises.[29] It can include service and other charges that are set out in the tenancy agreement.

The rent unpaid by the tenant might not be lawfully due if:

• it includes former tenancy arrears or legal costs

• it was based on an unlawful rent increase

• it includes utilities not included in the rent

• the limitation period to recover the arrears has expired[30]

• the landlord has not supplied their address for service[31]

Unlawful rent increase

A landlord of an assured or assured shorthold tenant can increase the rent if conditions in the tenancy agreement or the Housing Act 1988 are met. Otherwise, the amount of the rent increase is not lawfully due.

Read more about rent increases for private tenants.

Disrepair defence

A tenant can file a defence and counterclaim if the landlord has failed to carry out repairs or the property is not fit for habitation.

Read more about disrepair and safety responsibilities and tenant's defence and counterclaim process.

Discrimination defence

A tenant can file a defence and counterclaim if they have been discriminated against by the landlord. For example, if they have received less favourable treatment because of a disability.

Read more about disability discrimination defences.

Human rights and public law defence

A tenant can file a defence on public law grounds against a public authority landlord. Local authorities are public authorities. Housing Associations can be treated as a public authority if they are exercising a public function.

A housing association tenant might have a public law defence if the landlord has:

• acted in contravention of its policy on ground 8

• not submitted evidence of its policy on ground 8

• not considered whether it is proportionate to use ground 8

Read more about human rights and public law defences.

Failure to protect a tenancy deposit

A private tenant could file a defence and counterclaim if their private landlord did not comply with tenancy deposit protection rules. If successful, the court can award the tenant up to three times the deposit amount.

Read more about tenancy deposit protection rules.

Once the court is satisfied the landlord is entitled to possession on ground 8, it must normally fix a date for possession no later than 14 days after the hearing date.[32]

A tenant who will suffer exceptional hardship by giving up possession in 14 days can request an extension of time. The court can delay the date for possession for up to 42 days from the hearing date. The court has no power to extend the date for possession beyond 42 days in any circumstances.

What is exceptional hardship?

There is no definition of exceptional hardship in legislation, and no reported cases. The court has discretion to decide when it applies.

A tenant could show they will suffer exceptional hardship if they are not granted longer than 14 days because of reasons like:

• someone in the household has an illness or disability

• children in the household attend a local school

• irregular working hours make it difficult to find somewhere to live

The court must consider whether the tenant will suffer exceptional hardship if possession is granted in 14 days or less. The legislation makes no provision to take delays in enforcement due to court backlogs into account.

The landlord can apply to court for a warrant of possession to evict the tenant once the date for possession has passed.

The court cannot suspend a warrant on payment terms if the possession order was made on ground 8.

An eviction warrant issued in ground 8 proceedings can be delayed for a maximum of 42 days from the date of the original possession hearing. In practice, the eviction date is likely to be more than 42 days from the hearing date.

Possession order does not state ground 8

Possession orders that state a different ground or do not state any ground can be suspended to allow the tenant to pay the arrears.

Find out more about suspending a warrant of possession.