Law guide: Property

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Recovering possession under section 8

Recovering possession under section 8

Contents

Grounds for possession (s 8 notice)

The Housing Act 1988 sets out the grounds for possession in Schedule 2. If possession is claimed under any of these grounds the tenant must first be given a notice of the ground in compliance with section 8 of the Act. A notice requiring the tenant to give up possession on any of these grounds set out in Schedule 2 is called a 'section 8 notice'. The grounds are divided into mandatory and discretionary grounds. Only certain grounds can be used for fixed-term tenancies.

Mandatory vs discretionary grounds

Grounds for possession consist of:

  • Mandatory grounds, meaning that the court must grant a possession order requiring the tenant to leave the property (usually within 14 days from the date of the possession order)
  • Discretionary grounds, meaning that the court may grant a possession order if it's reasonable to do so (depending on the facts)

If you seek possession on some of the mandatory grounds, you must have notified the tenant in writing before the tenancy started that you might seek possession on these grounds.

If you use any of the discretionary grounds, the court may allow the tenant to stay in the property as long as they meet certain conditions (such as paying the rent by instalments if possession is sought on the grounds of rent arrears). You can then only go back to court to get a possession order to evict the tenant if they breach the conditions.

Mandatory grounds for possession that require prior written notice

GroundWhen you can use this ground

1: The landlord requires possession in order that they may live in the property

You must have:

  • Given the tenant written notice on or before the start of the tenancy that possession might be recovered on this ground. (The court may dispense with this requirement if it believes that it's just and equitable to do so.)
  • At some time before the start of the tenancy, occupied the property as your only or principal home (or at least one of you for joint landlords).

2: The property is subject to a mortgage granted before the start of the tenancy and the lender is seeking possession of it

  • The lender requires, and is entitled to, possession of the property.
  • Either notice was given to the tenant as mentioned in Ground 1 above (or the court is satisfied that it's just and equitable to dispense with the requirement to give notice).

3: The property is normally occupied as a holiday let

  • The tenancy is a fixed-term tenancy for a term of no more than 8 months.
  • You gave the tenant written notice (on or before the start of the tenancy) that possession might be recovered on this ground.
  • The property was occupied under a right to occupy it for a holiday at sometime within the 12 months before the start of the tenancy.

4: The property is normally let to students by an educational institution, such as a university

  • The tenancy is a fixed-term tenancy for a term of no more than 12 months.
  • You gave the tenant written notice (on or before the start of the tenancy) that possession might be recovered on this ground.
  • The property was let to students by an educational institution at sometime within the 12 months before the start of the tenancy.

5: The property is used by a minister of religion as a residence from which to perform the duties of their office

  • You gave the tenant written notice (on or before the start of the tenancy) that possession might be recovered on this ground.
  • The court is satisfied that the property is required for occupation by a minister of religion as such a residence.

Mandatory grounds for possession that don't require prior written notice

GroundWhen you can use this ground

6: The landlord intends to demolish or reconstruct the whole, or a substantial part of, the property or to carry out substantial works on it or any part of it

If the works can't be carried out if the tenant remains in the property. You must pay the tenant reasonable removal expenses if possession is granted on this ground.

7: The previous tenant has died and the new tenant isn't entitled to 'inherit' the tenancy from them

  • The tenancy is a periodic tenancy (including a statutory periodic tenancy) that has passed under a will or intestacy of the former tenant.
  • The proceedings for the recovery of possession start not later than 12 months after the death of the former tenant or, if the court directs, 12 months after the date when, in the opinion of the court, the landlord became aware of the former tenant's death.

7A: Antisocial behaviour

A court must grant an order for possession if the tenant, or someone living in or visiting the property, has:

  • Been convicted of a serious offence after 20 October 2014
  • Breached an injunction under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014
  • Been convicted of breaching an order under the Anti-social Behaviour, Crime and Policing Act 2014
  • Been convicted of an offence involving breaching an abatement notice or a court order to stop committing a statutory nuisance under section 80(4) or 82(8) Environmental Protection Act

In addition, their conduct must have taken place:

  • in or near the property;
  • against or affecting someone with a right to live in or near the property; or
  • against the landlord or someone employed to manage the property.

The notice must be served within 12 months of the conviction.

Alternatively, the court must grant an order for possession if the property has been subject to a closure order, or access to it has been banned because of a closure order or notice under the Anti-social Behaviour, Crime and Policing Act 2014. The notice must be served within 3 months of the day of the closure order.

7B: No right to rent

This ground was introduced on 1 December 2016 and applies only to England. A landlord may terminate under Ground 7B if they have received a notice from the Secretary of State that one or more of the tenants, or one or more of the people occupying the house, don't have a right to rent.

If Ground 7B applies to all the tenants, the landlord can use the prescribed form for this purpose (Notice of Eviction and End of Tenancy under s 33D(3) of the Immigration Act 2014) to give the tenants at least 28 days' notice to leave the property. The notice is treated as a notice to quit and ends the tenancy without the need for an order of the court. However, the landlord must not evict the tenants forcibly and should apply to the court for an order for a warrant of possession if the tenants don't leave so that the court bailiff can carry out the eviction. This notice doesn't apply if some of the tenants have a right to rent.

Alternatively the landlord can use a notice under section 8 of the Housing Act relying on Ground 7B, and then apply to the court for an order for possession.

8: Rent arrears

For the purpose of this ground, 'rent' means rent lawfully due from the tenant

At the date of the service of a notice under section 8 of the Housing Act 1988 (a notice seeking possession) and at the date of the hearing:

  • At least 8 weeks' rent is unpaid (if rent is payable weekly or fortnightly)
  • At least 2 months' rent is unpaid (if rent is payable monthly)
  • At least one quarter's rent is more than 3 months in arrears (if rent is payable quarterly)
  • At least 3 months' rent is more than 3 months in arrears (if rent is payable yearly)

Discretionary grounds for possession

GroundWhen you can use this ground

9: Suitable alternative accommodation

Suitable alternative accommodation is available for the tenant or will be available for them when the order for possession takes effect.

10: Rent arrears

Rent is lawfully due from the tenant and:

  • is unpaid on the date when the proceedings for possession started;
  • was owed at the date that notice was served under section 8 of the Housing Act 1988 (a notice seeking possession).

11: Rent is persistently paid late

The tenant has persistently delayed paying the rent. There does not need to be any rent arrears to rely on this ground.

12: Breaches of the terms of the tenancy agreement

The tenant has breached or not performed one or more of the terms of the tenancy agreement (other than payment of rent).

13: Disrepair to the property

The condition of the property or any of its common parts has deteriorated because of acts by, or the neglect of, the tenant or any other person living in the property. If the deterioration has been caused by a third party living in the property and the tenant has not taken reasonable steps to have the other person removed, a possession order may be made.

14: Nuisance or use for immoral/illegal purposes

The tenant or a person residing in or visiting the property:

  • Has been guilty of conduct causing, or likely to cause, a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, to the landlord or to someone employed by the landlord to manage the premises.
  • Has been convicted of using the property or allowing it to be used for immoral or illegal purposes, or has been convicted of an arrestable offence committed in, or in the locality of, the property.

14A: Domestic violence

This applies to a landlord who is a Housing Association or Trust and not a private landlord.

14ZA: Arrestable offence at the scene of a riot

The tenant or an adult living in the property has been convicted of an arrestable offence committed during and at the scene of a riot (applies in England only).

15: Disrepair to the furniture

  • The condition of any furniture provided for use under the tenancy has, in the opinion of the court, deteriorated because of ill-treatment by the tenant or by a third party living in the property with the tenant, and

the tenant hasn't taken reasonable steps for the removal of any third party causing the damage.

16: Employees

The property was let to the tenant as a result of their employment by the current or previous landlord and the tenant has ceased to be employed.

17: Misrepresentation

The landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by:

  • The tenant
  • A person acting at the tenant's instigation

Giving written notice

Depending on which grounds you're using, you must give the tenant the following length of notice in writing:

  • Grounds 1, 2, 5, 6, 7, 9 and 16: 2 months' notice
  • Grounds 3, 4, 8, 10, 11, 12, 13, 14A, 14ZA, 15 and 17: 2 weeks' notice
  • Ground 7A: this varies depending on the condition in that ground that the landlord is relying on
  • Ground 14, the landlord is entitled to possession on serving the notice

Fixed-term tenancies

A fixed-term assured tenancy can only be terminated during the fixed term if the tenancy agreement states this can be done, and only on certain grounds. The grounds are

  • Ground 2 (mortgagee's claim)
  • Ground 7 (inherited tenancy in England only)
  • Ground 7A (antisocial behaviour)
  • Ground 8 (rent arrears)
  • Discretionary Grounds 10-15 and 17