Mandatory and Discretionary Grounds for Eviction under the Housing Act 1988

When a landlord brings a claim for possession of their property, it is not always straightforward.  You need to have a legal reason for your claim – if this is not made out then your claim will fail.

The type of reason you can use depends upon the type of tenancy that you have.  If your tenancy is an assured or an assured shorthold tenancy then your reason for eviction must be one which is authorised by the Housing Act 1988 – the act that set up and regulates assured and assured shorthold tenancies.

One way that landlords can recover possession is under the procedure described in section 21.  We look at this in the Section 21 Guide.  If at all possible we recommend that landlords use section 21, as there is not a lot that can go wrong if your claim is properly set up.

The way that landlords can recover possession is to base their claim on one of the grounds for possession which are set out in Schedule 2 of the Act.  This is what we are going to be looking at below.

Before going through the grounds though, we need to take a look at sections 7 and 8 of the act, as these set out how the system works.

Section 7 of the Act

This says:

  • That landlords can’t use Notices to Quit or the forfeiture procedure for possession for assured and assured shorthold tenancies (these were the procedures that used to be used and are still used for ‘unregulated’ common law tenancies), and
  • That if the tenancy is a fixed term tenancy, then you can’t base a claim on any of the Schedule 2 grounds unless this is provided for in your tenancy agreement (section 7(6)(b)).  The section says that this can take  ‘the form of a provision for re-entry, for forfeiture, for determination by notice or otherwise’

If you use the Landlord Law tenancy agreement or most professionally drafted tenancy agreements, these will have proper clauses.  But if you let the tenant into the property with no written agreement you will be in difficulties.  You will probably need to wait until the end of the fixed term before you can evict your tenant.

Section 8 of the Act

Section 8 of the act sets out the procedure for serving the notice which must precede the issue of proceedings –  which is why the notice is called a ‘section 8 notice’.

In non-technical language, this is what section 8 says:

  • You must serve a section 8 notice before issuing proceedings based on any of the grounds, although in some circumstances the Judge can waive this requirement if he considers it ‘just and equitable’.
  • You should cite the ground that you want to use in your notice, although the court can give you leave to change the grounds later.
  • However, if you are using one of grounds 7A, 7B or ground 8 (the serious rent arrears ground) you MUST cite this in your notice – or you can’t base your claim on that ground.  As the Judge’s power to waive the requirement does not apply to these grounds.
  • You must use the prescribed form of notice.  This means that if you change any of the prescribed wording – this will invalidate the notice
  • You have to give the proper notice period in your notice.  Basically, this is not less than two weeks for ‘bad tenant’ grounds (such as ground 8) or (in most cases) two months for other grounds (such as ground 1) where the tenant has done nothing wrong.
  • The notice has a ‘life’ of 12 months from the date of service.  After which you will need to serve another notice.

(The section has a lot more in it, but those are the main things you need to know).

The most common ground used is ground 8.  However, for completeness, we set out all the grounds here, with some notes about them, just so you know what they are.  If you want to see them in situ you will find  Schedule 2 here.

First, we will look at –

The Mandatory Grounds

With these grounds the Judge HAS to make an order for possession, if the ground has been made out.

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Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice and (in either case) —

(a) at some time before the beginning of the tenancy, the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them occupied the dwelling-house as his only or principal home; or

(b) the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them requires the dwelling-house as his, his spouse’s or his civil partner’s only or principal home and neither the landlord (or, in the case of joint landlords, any one of them) nor any other person who, as landlord, derived title under the landlord who gave the notice mentioned above acquired the reversion on the tenancy for money or money’s worth.

So far as ‘dispensing with notice’ is concerned, what this in effect means is that if you don’t serve the notice you can still use the ground but effectively it will be a discretionary ground – as it will be dependent on the Judge’s discretion.

Note also that this ground cannot be used by a landlord by purchase – only the original landlord who let to the tenant.

Landlord’s occupation

There are two limbs to this.  Firstly

  • EITHER the landlord must have lived the property at some point in the past before the tenant moved in. It didn’t have to be their only home but they must have genuinely lived there, even if their occupation was intermittent or temporary. If there are joint landlords then it can be acceptable if only one of them had lived there previously
  • OR the landlord wants it for themselves, their spouse or civil partner’s sole or principal home.

There are cases where it was held that occupation both prior to the letting or as intended occupation after possession need not be permanent and can be intermittent.

Other points

This is a mandatory ground, so if you have served prior notice and can prove the circumstances that satisfy this ground then the judge has no choice but to grant outright possession.

Note that part (b) of this ground can’t be used simply because you want to sell the house or because you want anyone other than your spouse or civil partner to occupy as their home, not your brother, children etc.

Owner occupiers take note –

This ground tends not to be used much nowadays (even where it is clearly available), mainly because landlords prefer to use section 21 – because it is better known and they can use the accelerated procedure.  However, with the increasing regulation surrounding section 21, it is likely that this ground may start to be more popular.

In fact, if you are a landlord and are renting out a property you have previously lived in or which you may live in, in the future – you are STRONGLY advised to put a ground 1 notice in your tenancy agreement.  Goodness knows what else may have been done to section 21 by the time you want to use it …

Here is a form of notice you could use in your tenancy agreement:

We hereby give you notice that possession of this property might be recovered under ground 1 of Schedule 2 Part 1 of the Housing Act 1988

Useless facts – back in 1989 when the Housing Act first come into force, you COULD use the accelerated procedure for ground 1 but later this was changed so that the accelerated procedure can only now be used for section 21 claims.  The form was N5a (which is why the s21 form is N5b) but form number N5A is now being used for something else.

The dwelling-house is subject to a mortgage granted before the beginning of the tenancy and—

(a) the mortgagee is entitled to exercise a power of sale conferred on him by the mortgage or by section 101 of the Law of Property Act 1925; and

(b) the mortgagee requires possession of the dwelling-house for the purpose of disposing of it with vacant possession in exercise of that power; and

(c) either notice was given as mentioned in Ground 1 above or the court is satisfied that it is just and equitable to dispense with the requirement of notice;
and for the purposes of this ground “mortgage” includes a charge and “mortgagee” shall be construed accordingly.

This ground can only be used by mortgagees – eg your ‘buy-to-let’ lender.  For example, if you have defaulted on your payments, they have repossessed the property and want to sell it with vacant possession.

It cannot be used by the landlord.

This ground is rarely used, but you may be asked by your lender to serve a ‘ground 2’ notice in your tenancy agreement.

We do not include such a notice on Landlord Law as it is normal for lenders to provide one for you.  As it is to protect them, they will normally want to have control over what is in it.

The tenancy is a fixed term tenancy for a term not exceeding eight months and—

(a) not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground; and

(b) at some time within the period of twelve months ending with the beginning of the tenancy, the dwelling-house was occupied under a right to occupy it for a holiday

This is another of the grounds where a notice needs to be served first, normally in the tenancy agreement.

It is intended for landlords who oscillate between genuine holiday lets and standard residential let’s, although you need to bear in mind that the residential let should be for no more than 8 months long.

Having said that, the ground should theoretically at least be available where the tenant stays on longer than 8 months, as long as the set, fixed, term is only 8 months.

It is an important requirement that at some point during the preceding 12 months the property was genuinely used as a holiday let but, if there is any suspicion that this was not the case the burden of proof falls on the tenant in defence, not the landlord.

The main problem with this ground is that it takes such a long time to get a possession order, that the holiday season will probably be over by the time you get your order!

It is rarely used.

The tenancy is a fixed term tenancy for a term not exceeding twelve months and—

(a) not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground; and

(b) at some time within the period of twelve months ending with the beginning of the tenancy, the dwelling-house was let on a tenancy falling within paragraph 8 of Schedule 1 to this Act.

A letting under paragraph 8 of Schedule 1 is a tenancy granted by a ‘specified educational institution’ – for example a college or university.

So this ground is not available to ‘ordinary’ landlords.

The dwelling-house is held for the purpose of being available for occupation by a minister of religion as a residence from which to perform the duties of his office and—
(a) not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground; and

(b) the court is satisfied that the dwelling-house is required for occupation by a minister of religion as such a residence.

Unless you are a religious organisation renting to ‘Ministers of Religion’ this ground is not available to you.

The landlord who is seeking possession or, if that landlord is a registered social landlord or charitable housing trust, a superior landlord intends to demolish or reconstruct the whole or a substantial part of the dwelling-house or to carry out substantial works on the dwelling-house or any part thereof or any building of which it forms part and the following conditions are fulfilled—

(a) the intended work cannot reasonably be carried out without the tenant giving up possession of the dwelling-house because—

(i) the tenant is not willing to agree to such a variation of the terms of the tenancy as would give such access and other facilities as would permit the intended work to be carried out, or
(ii) the nature of the intended work is such that no such variation is practicable, or
(iii) the tenant is not willing to accept an assured tenancy of such part only of the dwelling-house (in this sub-paragraph referred to as “the reduced part”) as would leave in the possession of his landlord so much of the dwelling-house as would be reasonable to enable the intended work to be carried out and, where appropriate, as would give such access and other facilities over the reduced part as would permit the intended work to be carried out, or
(iv) the nature of the intended work is such that such a tenancy is not practicable; and

(b) either the landlord seeking possession acquired his interest in the dwelling-house before the grant of the tenancy or that interest was in existence at the time of that grant and neither that landlord (or, in the case of joint landlords, any of them) nor any other person who, alone or jointly with others, has acquired that interest since that time acquired it for money or money’s worth; and

(c) the assured tenancy on which the dwelling-house is let did not come into being by virtue of any provision of Schedule 1 to the Rent Act 1977, as amended by Part I of Schedule 4 to this Act or, as the case may be, section 4 of the Rent (Agriculture) Act 1976, as amended by Part II of that Schedule.

For the purposes of this ground, if, immediately before the grant of the tenancy, the tenant to whom it was granted or, if it was granted to joint tenants, any of them was the tenant or one of the joint tenants of the dwelling-house concerned under an earlier assured tenancy or, as the case may be, under a tenancy to which Schedule 10 to the Local Government and Housing Act 1989 applied], any reference in paragraph (b) above to the grant of the tenancy is a reference to the grant of that earlier assured tenancy or, as the case may be, to the grant of the tenancy to which the said Schedule 10 applied.

For the purposes of this ground “registered social landlord” has the same meaning as in the Housing Act 1985 (see section 5(4) and (5) of that Act) and “charitable housing trust” means a housing trust, within the meaning of the Housing Associations Act 1985, which is a charity, within the meaning of the Charities Act 1993.

This ground can sometimes be used by landlords but there are some heavy hurdles to overcome.

  • The ground is for ‘demolition or reconstruction’ – so it can’t be used for something like decorating or putting in a new damp course.
  • It must be impossible to do the works with the tenant in situ.  If the problem is that the landlord is unable to gain access, then he should apply for an injunction
  • The works should be looking to do the works shortly after possession (and the landlord will have to prove this if challenged by the tenant).  
  • The works are in respect of the whole of the premises or a substantial part
  • The ground is not available to landlords by purchase.

So if you buy a property looking to re-develop it and then find that Mrs Smith in the ground floor flat has an assured tenancy – you will not be able to use this ground to get her out!

The tenancy is a periodic tenancy (including a statutory periodic tenancy) which has devolved under the will or intestacy of the former tenant and the proceedings for the recovery of possession are begun not later than twelve months after the death of the former tenant or, if the court so directs, after the date on which, in the opinion of the court, the landlord or, in the case of joint landlords, any one of them became aware of the former tenant’s death.

For the purposes of this ground, the acceptance by the landlord of rent from a new tenant after the death of the former tenant shall not be regarded as creating a new periodic tenancy, unless the landlord agrees in writing to a change (as compared with the tenancy before the death) in the amount of the rent, the period of the tenancy, the premises which are let or any other term of the tenancy.

This should not be confused with ‘Succession’, which is what happens when one tenant dies and a periodic tenancy automatically transfers to the surviving husband, wife or civil partner (or in some cases, family member).

This is about one tenant inheriting the tenancy under a will or (if the tenant did not leave a will) under the intestacy rules.

We are still on mandatory grounds for possession here so the beneficiary of a will won’t be able to defend against a possession application under this ground – but the landlord must apply quite promptly.

The ground in the original act specifies ‘periodic tenancy’ but this was changed by the Localism Act s162(5). Now the ground can be used for all fixed term tenancies save any tenancies where a premium was paid (very rare) or if the tenancy has any value.

The ground says “Proceedings for the recovery of possession are begun not later than twelve months after the death of the former tenant”

Which means court proceedings, not merely service of a section 8 notice. So, if court papers haven’t been issued within 12 months of the death then a landlord could lose. As it is a two month notice period, this means that the notice must be served well before the end of month 10.

Helpfully the ground does state clearly that acceptance of rent from the beneficiary occupant whilst possession proceedings are being brought will not create a tenancy between the landlord and the beneficiary.

We are not reproducing the text of the ground here as it is very long and is unlikley to be available to many, if any, private landlords.

Unlike the other grounds for eviction we have looked at, Ground 7a is a newcomer and came in via the Anti-Social Behaviour, Crime and Policing Act 2014.

It can be used for assured and assured shorthold tenancies but not for statutory periodic tenancies.

It is not an easy ground and landlords should, if at all possible, avoid it and use section 21 to evict anti-social behaviour tenants.

Anyone contemplating using this ground should take legal advice first – although there is some further explanation on this blog post.

Both of the following conditions are met in relation to a dwelling-house in England.

Condition 1 is that the Secretary of State has given a notice in writing to the landlord or, in the case of joint landlords, one or more of them which identifies—

(a) the tenant or, in the case of joint tenants, one or more of them, or

(b) one or more other persons aged 18 or over who are occupying the dwelling-house,

as a person or persons disqualified as a result of their immigration status from occupying the dwelling-house under the tenancy.

Condition 2 is that the person or persons named in the notice—

(a) fall within paragraph (a) or (b) of condition 1, and

(b) are disqualified as a result of their immigration status from occupying the dwelling-house under the tenancy.

For the purposes of this ground a person (“P”) is disqualified as a result of their immigration status from occupying the dwelling-house under the tenancy if—

(a) P is not a relevant national, and

(b) P does not have a right to rent in relation to the dwelling-house.

P does not have a right to rent in relation to the dwelling-house if—

(a) P requires leave to enter or remain in the United Kingdom but does not have it, or

(b) P’s leave to enter or remain in the United Kingdom is subject to a condition preventing P from occupying the dwelling-house.

But P is to be treated as having a right to rent in relation to a dwelling-house if the Secretary of State has granted P permission for the purposes of this ground to occupy a dwelling-house under an assured tenancy.

In this ground “relevant national” means—

(a) a British citizen,

(b) a national of an EEA State other than the United Kingdom, or

(c) a national of Switzerland.

This is the new ground which was introduced by the Immigration Act 2016.  It can be used to evict tenants after you have been notified by the Home Office that they do not have any right to rent.

The Landlord Law eviction guide does not include instructions for eviction based on this ground.

Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing—

(a) if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;

(b) if rent is payable monthly, at least two months’ rent is unpaid;

(c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and

(d) if rent is payable yearly, at least three months’ rent is more than three months in arrears;

and for the purpose of this ground “rent” means rent lawfully due from the tenant.

This is probably the most popular ground for possession after section 21.

When this legislation was first introduced the arrears needed to be three months, but this was then amended to two months / eight weeks in the Landlord and Tenant Act 1996.

Note that the rent must be ‘rent lawfully due from the tenant’.  So if the tenant has a valid set-off, this may undermine your claim – or even take it away altogether.

You will find further details on the possession notices page (where you will find links to both the government form and the Landlord Law document generator version) and detailed instructions on how to base a claim on this ground in our Eviction Guide.  See the menu links on this page.

We also have some guidance in the Rent Arrears Action Plan.

Discretionary Grounds

These grounds are not recommended, as the Judge has a discretion whether or not he makes the order for possession – even if the ground is made out.

Using these grounds can lead to a long and expensive court claim where you have no certainty that you will recover possession as Judges prefer to ‘give tenants a second chance’.  

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

There is guidance in Part III of the Schedule which applies to this ground which you can see here.

The thrust of this ground is that a landlord is seeking possession because they have another property that they can offer the tenant to move into that matches the original tenancy on several fronts.  Here are some which are mentioned in  Part III:

The tenancy type

If the tenant is on an Assured Tenancy then they can’t be moved to a property under an AST. A landlord can increase the level of security but not reduce it.

Situation and size

The new property must be of suitable closeness to the tenant’s workplace.  This element would also apply to other members of the tenant’s family living with them. Interestingly some writers suggest that in certain cases it is possible that a lodger could be deemed a family member for the purposes of the suitable alternative accommodation ground.

A property would be unlikely to be considered suitable if the tenant lived 1 mile from work and the offered property is 10 miles away.

So far as size is concerned, it needs to be of a size which a Local Authority would have to provide if they were re-housing.  For an example of how this would work see this real-life story.

There are several cases where tenants have defended on the basis that the property the landlord provided was unsuitable for other reasons (some of which are listed below) – so if you intend to use this ground you should always take legal advice first from specialist housing solicitors.

Some of the case law:

Some rent lawfully due from the tenant—
(a) is unpaid on the date on which the proceedings for possession are begun; and
(b) except where subsection (1)(b) of section 8 of this Act applies, was in arrears at the date of the service of the notice under that section relating to those proceedings.

This ground is regularly cited on section 8 notices for rent arrears grounds, but unless you are happy to let the tenant remain in the property if they pay the arrears by instalments you will not want to make it your sole ground.

Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent which has become lawfully due.

Again, although this ground is generally cited when seeking possession for rent arrears it is rarely used on its own.

An example of when it was can be seen in this real-life story.

Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed

This is a ‘catch all’ ground which a landlord can use where the tenant has broken the terms of their tenancy agreement.

However note that some clauses, if they are ‘unfair’ under the unfair terms rules will be invalid and so a breach of them cannot be a ground for possession.

Even if a clause is valid and you are able to prove breach – a Judge is not going to order possession, a very serious penalty, for something relatively minor such as, for example, using blue tac on the walls or not cleaning the windows regularly.

A Judge is far more likely to be annoyed at the landlord for bothering him with such a case and may even penalise the landlord in costs if they think the case was particularly unmeritorious – even if the tenant was technically in breach.  Costs are after all always in the discretion of the Judge.

Even if a Judge does make a possession order, unless the breach is extremely serious (removing a wall maybe, or using the property for criminal purposes) the order is almost certainly going to be suspended so long as the tenant refrains from doing what-ever-it-is again.

Landlords wanting tenants to be evicted within the foreseeable future should forget about ground 12 and wait until they can use section 21.

Curo Houses Ltd v. Walker [2018]

This is a County Court case and appeal to the Judge based on grounds 12 and 14 where the claimant Curo Houses Ltd, a housing association, lost their case, both at first instance and on appeal against Ms Walker despite evidence of serious noise nuisance and a criminal conviction for harassment.

See more here.

The condition of the dwelling-house or any of the common parts has deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any other person residing in the dwelling-house and, in the case of an act of waste by, or the neglect or default of, a person lodging with the tenant or a sub-tenant of his, the tenant has not taken such steps as he ought reasonably to have taken for the removal of the lodger or sub-tenant.

For the purposes of this ground, “common parts” means any part of a building comprising the dwelling-house and any other premises which the tenant is entitled under the terms of the tenancy to use in common with the occupiers of other dwelling-houses in which the landlord has an estate or interest.

This is another discretionary gound which is best avoided.  Although it is interesting that the tenant is specifically held liable for damage or neglect from a lodger or sub tenant.

If you have such a situation you can tell your tenant that in most cases they will be able to evict an unsatisfactory lodger (provided they share living accommodation) without the need for court proceedings, as discussed here.

The tenant or a person residing in or visiting the dwelling-house—
(a) 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, or
(b) has been convicted of—
(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii) an indictable offence committed in, or in the locality of, the dwelling-house.

Judges are notoriously reluctant to make possession orders based on this ground.  See this blog post.

Even if you think you have a good case, the Judge will almost certainly make a suspended order.  You are better off waiting until you can use section 21.

Curo Houses Ltd v. Walker [2018]

This is a County Court case and appeal to the Judge based on grounds 12 and 14 where the claimant Curo Houses Ltd, a housing association, lost their case, both at first instance and on appeal against Ms Walker despite evidence of serious noise nuisance and a criminal conviction for harassment.

See more here.

The dwelling-house was occupied (whether alone or with others) by a married couple, a couple who are civil partners of each other, a couple living together as husband and wife or a couple living together as if they were civil partners and—
(a) one or both of the partners is a tenant of the dwelling-house,
(b) the landlord who is seeking possession is a registered social landlord or a charitable housing trust,
(c) one partner has left the dwelling-house because of violence or threats of violence by the other towards—
(i) that partner, or
(ii) a member of the family of that partner who was residing with that partner immediately before the partner left, and
(d) the court is satisfied that the partner who has left is unlikely to return.

As it says in the ground – you need to be a registered social landlord or charity to use this ground.

Even if you are one of these – you should never attempt to issue proceedings using this ground without an experienced solicitor.

You will need to be in a position to prove the ground by evidence such as witness statements, police reports and the like.

The condition of any furniture provided for use under the tenancy has, in the opinion of the court, deteriorated owing to ill-treatment by the tenant or any other person residing in the dwelling-house and, in the case of ill-treatment by a person lodging with the tenant or by a sub-tenant of his, the tenant has not taken such steps as he ought reasonably to have taken for the removal of the lodger or sub-tenant.

Again, you should not use this ground for possession, certainly not on its own.  A Judge is not going to make someone homeless because the springs in the sofa are worn down (for example).

It may be usefully used in conjunction with other discretionary grounds but unless you have no alternative, discretionary grounds like this should be avoided.

The dwelling-house was let to the tenant in consequence of his employment by the landlord seeking possession or a previous landlord under the tenancy and the tenant has ceased to be in that employment

Note that if the occupier is required to live in the property for his employment (for example live in housekeepers and gamekeepers), then he will not be a tenant at all but a licensee.  Who will not be able to defend a claim for possession once their license to occupy has been terminated.

Probably the reason why this ground is discretionary rather than mandatory is that if the accommodation is necessary for the tenant’s job (and so required for the next employee) it will almost certainly be a license.  So the Judge should be given a discretion as it may be unfair for a tenant to lose his home simply because he is no longer employed by his landlord.

It will depend on the circumstances.  But if the property is required for another employee the landlord’s chances of getting possession will be better.

Although it would be better still to use section 21 and avoid any uncertainty whatsoever!

The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by—
(a) the tenant, or
(b) a person acting at the tenant’s instigation

Interestingly the wording indicates that it must be an action rather than a failure to act.  So presumably a failure to disclose 10 CCJs will not satisfy the ground.  Whereas a statement saying there are no CCJs would.

The landlord will also have to be able to prove that the misrepresentation induced them to grant the tenancy.

Although again, better to wait until you can use section 21.

Even better still – double check ALL statements made by prospective tenants until you are certain that they are true.  

Whats your opinion? Got any questions?
Discuss it in the forum

Or see one of the Eviction Guide pages