Grounds for possession

For more information, please contact:

Baljit Basra Partner 020 3815 2658 Email Baljit

 As part of the Government’s quid pro quo for abolition of section 21 and ending assured shorthold tenancies generally, landlords were reassured that the grounds for possession (the basis for which a landlord can ask a court for possession of a property) would be enhanced, giving easier and greater flexibility to landlords in seeking the recovery of their properties where necessary.

Indeed, the Bill brings significant changes to the grounds for possession (which will now be used for all assured tenancies). Two questions remain however: do the proposals go far enough and will the courts be able to improve its processes to provide quicker and more cost-efficient outcomes - all the rights in the world are of no use, for landlord and tenant alike, if they cannot be enforced in an effective, timely and cost-efficient way through the justice system.

These changes will impact on both the private rented and social housing sectors although naturally some of the grounds will only be available to one or the other. This will become clear when we look at the specific changes that are proposed by the Bill below (which include both changes to existing grounds for possession along with entirely new grounds altogether).

We do not cover all the changes here (there will be 33 different grounds under the new regime!), but here are some of the most key:

Mandatory Grounds

A mandatory ground is one where the court must make an order for possession (save limited exceptions) if the landlord has proved the factual basis of the ground itself – this means the court has no real discretion as to whether to give a possession order to a landlord subject to technical formalities having been carried out).

Ground 1A and 1B

These are new grounds for possession where: a landlord intends to sell (or transfer) a property or a compulsory purchase order has been made; or a landlord requires possession of a property (as the only or principal home for the landlord, the landlord’s spouse, civil partner or person the landlord lives with or the landlord’s family).

These can only be used where the tenancy has existed for more than six months and service of a notice under these provisions will prohibit a landlord from being able to let or market the property for three months. These grounds are not available to registered providers of social housing save for specific rent-to-buy arrangements.

Ground 2ZA

This is a new ground for possession which allows a landlord to recover possession when a superior tenancy (including a lease) ends, or where a valid notice has been given to end the same. This will, in the main, only apply to registered providers of social housing and/or supported accommodation providers.

Grounds 5A – 5F

These are new grounds for possession and are designed to be used where a property has been required for a particular purpose which has come to an end.

These include circumstances where:

  • a tenancy was granted because of a tenant’s employment eligibility, and they no longer meet such criteria (this will cover key workers for example);
  • a landlord requires the property to be let to someone based on their employment eligibility (again this will cover key workers as an example);
  • a property was let as a result of the tenant’s employment by the landlord, and the employment has come to an end (or the tenancy was not meant to last the duration of the employment and the property is required by a new employee);
  • a landlord requires possession from a non-supported accommodation resident to be able to let it as supported accommodation;
  • a landlord requires possession because support services or funding has ended or fallen away; the provision is no longer meeting the tenant’s needs or where the placement was ‘move on’ accommodation.

Naturally, subject to some exceptions, these are predominately for registered providers of social housing and/or support providers. These grounds will replace the current practice of offering assured shorthold tenancies for supported housing.

Ground 6A

This provides a new ground for possession where a landlord would be in breach of some form of enforcement notice or has been refused licensing, where such is required. The circumstances it will capture include where a landlord:

  • would breach a banning order;
  • would breach an Improvement Notice under HA 2004 where the hazard is overcrowding;
  • there is a prohibition order on the property or common parts; and
  • the property requires a licence and the landlord’s application has been refused.

Effectively this allows a landlord to bring a tenancy to an end where the properties cannot be legally occupied in their present form (notably, a landlord does not have to provide alternative accommodation). This will predominately impact the private rented sector, but registered providers are not exempt.

Ground 8 and 8A

Ground 8 currently applies where two months (or eight weeks) of rent arrears have accrued. The Bill amends this ground to require any calculation of the amount of arrears to ignore any amount of unpaid universal credit where the tenant was entitled to the same (but where the tenant has not yet received payment of it). This is a significant change.

There will also be a new ground to cover circumstances where two months (or eight weeks) of rent arrears have accrued on at least three separate days in a period of three years prior to the service of any notice. The new calculation requirements (taking into account universal credit issues – as above – will apply here too).

Discretionary Grounds

A discretionary ground is one where the court must consider whether (even if the landlord has proved the factual basis of the ground itself) it is reasonable to make an order for possession (this means the court has discretion as to whether to give a possession order to a landlord).

Ground 14

This is the discretionary ASB ground (nuisance or annoyance) which will see a small tweak so that it also applies to conduct that is “capable” of causing nuisance or annoyance rather than conduct “likely” to do so. It strikes us that this is unlikely to have any material change in practical terms.

Ground 18

This is a new discretionary ground and applies to tenancies of supported accommodation – it will allow for a discretionary ground for possession where the tenant has unreasonably refused to co-operate with the person providing support services, in relation to those services. Naturally, this will only apply to supported accommodation providers.

So, that is a whistle stop tour of some of the key changes to the grounds for possession (but not all!). It is important to note that the changes also include amendments to the applicable notice periods that must be given – we are also expecting to see a new statutory form of notice to coincide with the proposed changes.

Have the proposals gone far enough, in both sectors, given the wholesale regime change? Only time will tell…

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