Which Possession Proceedings?

The discretionary grounds for possession

These were the situations set out in the question:

• No section 21 notice has been served, or the fixed term has several months still to run, and
• You wish to evict the tenant because of his anti-social behaviour, and/or
• The tenant lied to you when applying for the tenancy, and/or
• The tenant is not looking after the property properly or is in breach of the terms of his tenancy agreement and/or
• The tenant is failing to pay his rent regularly, BUT
• Any rent arrears are less than two months (eight weeks) worth

These are all ‘bad tenant’ situations and are also covered by one of the ‘grounds’ for possession set out in the Housing Act 1988.  However, they are ‘discretionary’ grounds.

Mandatory and discretionary grounds for possession

Schedule 2 of the Housing Act 1988 sets out the ‘grounds’ you can use to evict a tenant following the section 8 procedure.

There are two types of eviction ‘ground’ – mandatory grounds and discretionary grounds.

• • • Mandatory grounds are grounds where the Judge HAS to make an order for possession – if the ground is made out.
    • Discretionary grounds are where the Judge has a discretion whether to make the possession order or not.  He can refuse to make the order if he does not think possession is justified. Even if he does make the possession order, it will normally be ‘suspended’ on terms.

(Members will find further information   here)

For this reason, save in exceptional cases, it is usually not a good idea to bring a claim for possession based on the discretionary grounds as you could be facing a long drawn out and expensive claim, particularly if the tenants defend (which they probably will).

Bear in mind the massive delays that can take place in the Courts for non-standard cases (and even standard cases sometimes) due to the general underfunding and pressure on court time.

In most cases, it will be quicker and easier to serve a section 21 notice and wait for it to expire.

If you think your case is an exception to this, you should take legal advice before proceeding.

If you decide to use any of the ‘discretionary’ grounds, use a firm of solicitors who specialise in eviction work, so they can advise you on the procedural hurdles you will face. These are not easy or straightforward claims to bring and you will need to have compelling evidence to support your claim.

The Landlord Law Eviction Guide will not be able to help you as we do not cover defended claims – they are not really something that should be done by a landlord without professional legal help.

If you decide to use solicitors, you will find our recommended solicitors here.  You will probably need a budget of several thousand pounds.

You can start by booking a telephone advice call – the solicitor will be able to advise on your chances and give you a quotation for their fees.

If you decide to wait and use section 21 click next.