All Housing Act 1988 tenancies, that is all Assured Shorthold tenancies (ASTs) as well as fully Assured tenancies, gain additional security of tenure by being continually granted a new periodic tenancy under section 5 of the Act. This security exists unless a landlord exercises their right to possession under Section 21 or Section 8 of the Act. The most commonly used route for possession by residential landlords is to issue proceedings using a Section 21 but there are alternative ways to seeking possession under certain grounds specified in Schedule 2, Housing Act 1988.
A notice can be served under section 8 if one of the 20 specified Grounds apply. A landlord must serve notice of intended proceedings using the form prescribed by the legislation. The notice must specify the ground(s) of possession which are being relied on, list the full text of the Ground from Schedule 2 of the Act, and set out an explanation as to why the landlord is seeking possession on those grounds. A ground for possession must be proven by evidence in Court. Unlike the current form of s21 (though changes are on the way), s8 notices have a limited life time and proceedings can only be issued on that notice within 12 months of service. Certain Grounds allow for possession proceedings to be issued after two weeks form the date of service of, other Grounds only allow proceedings to be issued within the same time period of an s21 notice, being 2 months from the date of service.
Grounds for Possession
Grounds for possession are sub-divided into two categories:
- Mandatory Grounds – The Court must grant a landlord possession of the property if a breach of Ground 1-8 can be proven.
- Discretionary Grounds – The Court must be satisfied it is reasonable to grant possession if relying on Grounds 9-17.
A notice is not limited to just one Ground and a landlord can rely on as many grounds as are applicable to a particular situation. It is also important to note that some Grounds cannot be used during a fixed term tenancy at all.
The specific Grounds for possession are reproduced here, in Schedule 2, Housing Act 1988. In this post I am going to concentrate on the most commonly used grounds for possession:
Certainly the most frequently used Grounds for possession under s.8 are for rent arrears. A landlord can rely on Ground 8 if the tenant is in at least two months arrears (or the equivalent sum of money) if rent is paid monthly. There are other applicable periods of arrears if the rent is paid weekly or quarterly. Ground 8 will only be successful if these arrears exist both at the time of service of the notice and at the date of the court hearing. This means that if the arrears are reduced by the time of the hearing date then the mandatory ground for possession will not apply. A landlord could also attempt to rely on Ground 10 that some rent was lawfully due at the time that the notice was served and Ground 11, the tenant has been persistently late in paying the rent. These Grounds are discretionary and if Ground 8 can no longer be relied on the Court can only grant possession if it is satisfied that it is reasonable to do so. Courts vary dramatically in their approach to this but relying on Grounds 10 or 11 alone is risky and unlikely to lead to a possession order being granted.
Breach of Tenancy
A Landlord can rely on Ground 12 if there has been a breach of a clause in the tenancy other than rent arrears. For example this Ground might be relied on if a tenant is sub-letting the property without consent and there is a Clause in the tenancy which prohibits the tenant from sub-letting. Sub-letting can be a particular problem if it leads to the property being classified as a House in Multiple Occupation. This could require a landlord to obtain a licence and adhere to the relevant HMO management regulations. Ground 12 is a discretionary ground and sufficient evidence must be provided to the Court to prove a breach of obligation. Not every breach of a tenancy is likely to lead to possession, the breach must be serious enough to justify removing the tenant from their home. Section 8 can be used as an alternative to s21 proceedings. In some circumstances possession proceedings can be issued sooner than under s.21. However, it does have its inherent risks. Depending on the Ground which the landlord is relying on there is no guarantee that possession will be granted and a tenant will usually have an opportunity to rectify the situation. A landlord should consider carefully, in all the circumstances, which route of possession should be used.