Secure tenancy discretionary grounds for possession

A possession order can be made against a secure tenant only if the court is satisfied it is reasonable to order possession.

This content applies to England

Discretionary grounds for possession

Grounds 1 to 8 are the discretionary grounds for possession. This means that if the landlord is using any of the the grounds set out below it must be reasonable for the court to grant possession.[1]

Ground 1 – Rent arrears or breach of the tenancy agreement

This ground covers the non-payment of rent and the breach of any other condition of the tenancy. The landlord should comply with the requirements of the Pre-action Protocol for Possession Cases by Social Landlords before pursuing possession proceedings for rent arrears.

Rent arrears must be of rent due at the time when court proceedings were started.

In deciding whether it is reasonable to make a possession order the court will consider matters such as the:

  • tenant's rent payment record

  • cause of the arrears

  • landlord's compliance with the pre-action protocol[2]

In one case, a landlord sought possession where the DWP was deducting a sum from the tenant's income support for the current rent and an amount towards the arrears. A lump sum was forwarded to the landlord every three months, so it appeared that the arrears were regularly increasing before being reduced each quarter. The court found that the tenant was acting responsibly in stabilising the situation and regard should be given to the fact that the current rent was being paid.[3]

Counterclaims

If there is disrepair then a claim for compensation can be brought as a defence and counterclaim within the possession proceedings. That may wipe out or reduce the rent arrears. However, the court has the discretion not to hear a counterclaim at the possession hearing unless that counterclaim was filed with the court when the tenant filed their defence. The tenant should file a defence with the court and serve a copy on the landlord within 14 days of receiving the landlord's claim from the court.

Successors and assignees

In principle a successor is not liable for any rent arrears owed by the original tenant at the time of their death.[4] However, if there is a possession order in force at the time of the death of the original tenant, the successor is at risk of eviction if they do not comply with the terms of the order.

For more information see Rent arrears and possession orders after the death of a tenant.

An assignee is not legally liable to meet the contractual terms of the original tenant's agreement with the landlord where the liability arose before the assignment. This means an assignee is not liable for rent arrears that accrued before they took over the tenancy.[5] The tenant's arrears from a previous tenancy cannot be relied upon unless it is a condition of the new tenancy that those arrears are paid off. Breach of such an agreement can then be relied upon.

Other charges

Many local authority landlords collect other charges, such as heating, council tax and water charges, as part of the rent. When the tenancy agreement provides for the payment of additional charges as part of the rent (or in consideration for use of the property) then such charges can be classified as rent.[6]

There have been challenges to the amount that a local authority landlord can lawfully recover for water charges from its tenants.[7] The decision of the court largely depends upon the wording of the commercial agreement between the local authority and water company.

Rent arrears and debt respite breathing space

Landlords and lenders are prohibited from giving a notice and issuing a claim for possession or from applying for a warrant of eviction on the basis of rent arrears, during a breathing space moratorium. For more details, see Breathing space debt moratorium and possession proceedings.

Ground 2 –  Nuisance or annoyance/illegal or immoral use of the property

Separate limbs

This ground applies where the tenant, or anyone living in or visiting the property, has been:

  • guilty of behaviour causing or likely to cause nuisance or annoyance to anyone living in, visiting or carrying out a lawful activity in the locality

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

  • convicted of an indictable offence committed in the locality

  • guilty of behaviour causing or likely to cause nuisance or annoyance to the landlord or someone employed (whether or not by the landlord) in connection with the landlord's housing management functions

For behaviour causing or likely to cause nuisance or annoyance to the landlord or someone employed by the landlord, the behaviour is not restricted to the locality.[8]

The landlord can also use the mandatory ground for antisocial behaviour where certain conditions are met.

Locality

Where 'locality' applies it indicates a wider area than the immediate neighbourhood.[9]

Time of offences

An offence committed committed in the locality prior to the start of the tenancy can meet this ground for possession.[10]

Reasonableness in nuisance cases

When the court considers whether it is reasonable for a possession order to be made, it must consider:[11]

  • the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought

  • any continuing effect the nuisance or annoyance is likely to have on such persons

  • the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.

If it is reasonable to make a possession order and the antisocial behaviour is serious and persistent, and/or the tenant commits a criminal offence, the order should only be suspended in exceptional cases.[12]

The court can make a possession order if the antisocial behaviour is solely attributable to a member of the tenant's household or visitor.[13] In considering whether it is reasonable to make, or suspend, a possession order the court should consider to what extent the tenant has sought to modify or control that person's behaviour, for example by evicting an adult child.[14]

Each case is different and the degree of nuisance, its cause, frequency, and severity, as well as whether the tenant has shown remorse and improved their behaviour, are all important considerations.[15] If refusing medical treatment for mental health problems, the court can view this as evidence of the likelihood of offending conduct not changing.[16]

Ground 2A –  Domestic violence

One partner of a married/civil partnership/cohabiting couple must have left because of violence or threats of violence from the other partner towards them, or a member of their family living with them, and the partner who has left must be unlikely to return. The violence must have been a cause of the partner leaving.[17] This ground is normally used when the victim has been re-housed.

Ground 2ZA – Offence during a riot

The tenant, or an adult living in the property, has been convicted of an indictable offence which took place during, and at the scene of, a riot anywhere in the UK.[18] The offence must have been committed on or after 13 May 2014. An indictable offence is one which can be tried in the Crown Court. 

A riot is defined as where 12 or more persons who are present together, use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for their personal safety.[19]

Ground 3 –  Deterioration in the condition of the property

The tenant, or anyone else living in the property, must have caused deterioration in the condition of the property or common parts. If damage is caused by a lodger or subtenant of the tenant (without the tenant's consent), possession will not be granted if the tenant has taken reasonable steps to evict that person.

Ground 4 –  Deterioration in furniture provided

The tenant, or anyone else living in the property, must have caused deterioration in the condition of furniture provided by the landlord in the property or common parts. Where damage is caused by a lodger or subtenant of the tenant (without the tenant's consent), possession will not be granted if the tenant has taken reasonable steps to evict that person.

Ground 5 –  The tenant obtained the tenancy by false statement to the landlord

This applies where a landlord was induced to grant a tenancy by a false statement made by the tenant knowingly or recklessly, or by someone acting at the tenant's instigation. The statement must have had a direct bearing on the decision to grant the tenancy. Where the statement made was clearly material an inference will be drawn that the representation influenced the decision to grant the tenancy.[20]

Ground 6 –  Premium paid in connection with mutual exchange

The tenancy must have been assigned to the tenant (or a family member who used to be the tenant, who still lives in the property) as part of a mutual exchange and money must have been paid in connection with the exchange.

Ground 7 – Non-housing accommodation

The property is part of a building used mainly for non-housing purposes which was let to the tenant as an employee of the landlord and the tenant is guilty of conduct that means it would not be appropriate for them to continue to occupy

This ground covers certain tied occupiers who are not service occupiers. Ground 7 includes dwellings that are part of the 'curtilage' of the building.[21]

Ground 8 –  The property was made available during works to former accommodation

This ground arises where a secure tenant having moved to another property while works are carried out on the original property refuses to return to the original property. It can only be used if there was an undertaking that the tenant would return to the original property on completion of the works and it is now ready to occupy.

In considering whether it is reasonable to make a possession order the court may consider whether the works have been done to an agreed standard and the length of time that the works have taken.

Last updated: 22 March 2021

Footnotes

  • [1]

    s.84(2)(a) and Sch.2 Housing Act 1985.

  • [2]

    Woodspring DC v Taylor (1982) 4 HLR 95, CA; Bracknell Forest BC v Green [2009] EWCA Civ 238.

  • [3]

    Brent LBC v Marks (1999) 31 HLR 343, CA.

  • [4]

    Tickner v Clifton [1929] 1 KB 207, DC.

  • [5]

    Notting Hill Housing Trust v Jones [1999] L&TR 397, CA.

  • [6]

    for eg see Escalus Properties Ltd v Robinson [1996]; Sidney Trading Co v Finsbury Corp [1952] 1 All ER 460.

  • [7]

    Jones v Southwark LBC [2016] EWHC 457 (Ch); Rochdale BC v Dixon [2011] EWCA Civ 1173; Rochdale Boroughwide Housing Ltd v Izevbigie (2017) EWHC 790 (CH).

  • [8]

    ground 2(aa) as inserted by s.98 Anti-social behaviour, Crime and Policing Act 2014 (wef 13 May 2014): Anti-social behaviour, Crime and Policing Act 2014 (Commencement No 2, Transitional and Transitory Provisions) Order 2014 SI 2014/949.

  • [9]

    Manchester CC v Lawler (1998) 31 HLR 119.

  • [10]

    Raglan Housing Association Ltd v Fairclough [2007] EWCA 1087.

  • [11]

    s.85A Housing Act 1985; Birmingham CC v Ashton [2012] EWCA Civ 1557; Lincoln CC v Bird [2015] EWHC 843 (QB).

  • [12]

    Sandwell MBC v Hensley [2007] EWCA Civ 1425; Barking and Dagenham LBC v Bakare [2012] EWCA Civ 750.

  • [13]

    Greenwich RLBC v Tuitt [2014] EWCA Civ 1669; Portsmouth CC v Bryant [2000] 32 HLR 906, CA

  • [14]

    Greenwich RLBC v Tuitt [2014] EWCA Civ 1669; Knowsley Housing Trust v McMullen [2006] EWCA Civ 539.

  • [15]

    Sandwell MBC v Hensley [2007] EWCA Civ 1425; North Devon Homes v Batchelor [2008] EWCA Civ 840; CDS Housing v Bellis [2008] EWCA Civ 1315; Knowsley Housing Trust v (1) Prescott (2) Prescott [2009] EWHC 924 (QB).

  • [16]

    Accent Peerless Ltd v Kingsdon and Kingsdon [2007] EWCA Civ 1314.

  • [17]

    Camden LBC v Mallett (2001) 33 HLR 204, CA.

  • [18]

    as inserted by s.99 Anti-social behaviour, Crime and Policing Act 2014: Anti-social behaviour, Crime and Policing Act 2014 (Commencement No 2, Transitional and Transitory Provisions) Order 2014 SI 2014/949.

  • [19]

    s.1 Public Order Act 1986.

  • [20]

    Waltham Forest LBC v Roberts [2004] EWCA Civ 940; Windsor and District Housing Association v Hewitt [2011] EWCA Civ 735; Shrewsbury and Atcham BC v Evans (1997) 30 HLR 123, CA.

  • [21]

    Dyer v Dorset CC (1998) 20 HLR 490, CA.