Eviction/Possession Grounds Under s8 & Serving Notice
The Housing Act 1988 provides 20 grounds for landlords to evict upon where the tenant has committed a breach of the tenancy agreement. The most common reason for landlords seeking possession is for rent arrears which is provided for by the following 3 grounds:
Ground 8 (mandatory) which is used when a tenant is more than two months in rent arrears. The landlord needs to give the tenant 14 days notice, before starting court action. For the purpose of this ground, ‘rent’ means ‘rent lawfully due from the tenant’. This ground is also changed by the Housing Act 1996 Act and arrears now must a) exceed 8 weeks if the rent is paid weekly or fortnightly, b) exceed 2 months if paid monthly, c) exceed one full quarter if paid quarterly or d) exceed 3 months if paid yearly. In each case the maximum arrears which can be accrued must exist both at the notice of proceedings and at the hearing itself.
Ground 10 (discretionary) may be used by the landlord if tenants are behind with the rent when the landlord served noticed seeking possession and were behind when court proceedings began. Notice of t least 2 weeks is required before starting court action. It is where some rent lawfully is due from the tenant which is: a: unpaid on the date on which the proceedings for possession are begun and; b: except where subsection 1(b) of s8 of the Act applies, was in arrears at the date of the service of the notice under that section relating to those proceedings. At least two weeks notice is required before court proceedings are started.
Ground 11 (discretionary) can be used where tenants have persistently provided late rent payments which are lawfully due and regardless of whether there are any arrears or not on the date on which the possession proceedings are started. At least 2 weeks notice is required before court proceedings are started.
OTHER MANDATORY GROUNDS
Ground 1 which is where the property is the main home of the landlord who used to live there. The only way this ground can be invoked is where the landlord (or spouse) wants the property back for personal occupation. It can also be invoked by successors in title as long as they did not purchase the property.
Notice of a least 2 months is required before court proceedings are started.
Ground 2 is where the properties have a BTL mortgage which must have been taken out before the tenancy began and the tenant warned about this within the agreement. It is used when vacant possession is required in order to sell the property but problems arise when the landlord has acquired a residential mortgage instead because a) its terms are more favourable and b) they don’t want to tell the lender. Should the landlord default on a residential mortgage then the mortgage company is under no legal obligation to recognise a tenancy and therefore the tenant. So, on the day that the fixed term AST ends, the lender in possession also has the right to issue a s21 Notice to the tenant to vacate the property within 2 months. If the AST has already expired by the time the property is repossessed and the tenancy has become a periodic tenancy then again the lender has the right to issue a s21 Notice immediately, with the tenant again having 2 months to vacate the property.
There are exceptions, however with Citizens Advice saying that in very limited circumstances, a tenancy may be binding on the landlord’s lender if any of the following situations apply:
- The tenant was already living in the property at the time of the mortgage being granted, either as a sitting tenant or when the landlord took a second mortgage. If there is any uncertainty as to when the landlord’s mortgage started, tenants should either ask or get advice to find out whether the tenancy is binding. An adviser may be able to confirm this via the court, the lender, and/or the Land Registry;
- If there is an agreement for the tenancy to be specifically recognised in some way, such as the lender asking for the rent to be paid to them directly or indirectly by another route. It is however important to remember that if lenders do this it will not be called rent, but something else.
As the new landlord, the lender is required to follow the correct eviction process.
Grounds 3 & 4 relate to where a property is a holiday let and was previously let as such. Prior notice of at least 2 weeks is required.
Ground 5 is a special ground applicable to ministers of religion, such as a religious body requiring the return of its property for an alternative tenant. At least 2 months notice is required before court proceedings are started.
Ground 6, relates to the demolition, reconstruction or redevelopment of the property. At least 2 months notice is required before court proceedings are started.
Ground 7 applies if a tenant dies and in his will leaves the tenancy to someone else (a resident heir) but the landlord must start proceedings against the new tenant within a year of the death if he wants to evict the new tenant. At least 2 months notice is required before court proceedings are started.
Ground 7b where one or more of the tenants do not have the Right to Rent;
Note: If one of the above mandatory grounds are proved then the judge has to award possession.
OTHER DISCRETIONARY GROUNDS
Ground 9 applies when suitable alternative accommodation is available or will be when the possession order takes effect and on the same basis. Notice is required of at least 2 months before court proceedings are started. If the landlord wishes to obtain possession of his property in order to use it for other purposes then suitable alternative accommodation has to be provided. At least 2 months notice is required before court proceedings are started.
Ground 12 concerns any breach of the tenancy and notice is required of at least 2 weeks before court proceedings are started. With the protected tenancy there are a number of conditions of the tenancy agreement, such as the requirements not to racially or sexually harass a neighbour.
If the court is considering under s84(2)(a) whether it is reasonable to make an order for possession on Ground 12, Part 1 of Schedule 2 (conduct of tenant or other person) it must give particular consideration to:
a: the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;
b: any continuing effect the nuisance or annoyance is likely to have on such persons;
c: the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.
At least 2 weeks notice is required before court proceedings are started.
Ground 13 deals with the deterioration of the dwelling as a result of a tenant’s neglect and is connected with the structure of the property. It puts responsibility on the tenant to look after the premises and is the same as for a protected tenancy. At least 2 weeks notice is required before court proceedings are started.
Ground 14 concerns where there is a tenant, sub-tenant, lodger or visitor causing a nuisance to neighbours or to visitors or is using the property for illegal or immoral purposes or has been convicted of an offence in the local area.The ground also covers domestic violence cases where one partner has left and is unlikely to return.
Ground 15 concerns the condition of the furniture supplied under the tenancy and tenants neglect.
As ground 13 puts some responsibility on the tenant to look after the structure of the building, ground 15 makes the tenant responsible for the furniture and fittings. At least 2 weeks notice is required before court proceedings are started.
Ground 16 covers accommodation linked to employment and the tenant has ceased to be in that employment. At least 2 months notice is required before court proceedings are started.
Ground 17 was the final ground introduced by the Housing Act 1996 and covers cases where the tenancy has been created through the tenant knowingly making a false statement (or someone else made it on their behalf).or someone acting on his behalf.
There is also one other overriding reason for seeking possession, and that is where it can clearly been shown that the tenant is no longer using the accommodation as his principal home.
The time frame for an eviction notice served under s8 can vary from 2 weeks to two months as it depends on the grounds that are being used. Most s8 notices provide the legal meaning of all 20 grounds but landlords must clearly state which ones they are using and why. Even if the grounds that are not required are scored out, an explanation for the ones that are being relied upon must be supplied.
The notice itself is served on a specific form, that of a Form 3: Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy. Notices must be signed either by the landlord or their agent and expiry date must inserted allowing for time for the notice to be received by the tenant. Any decent tenancy agreements will allow the time frame for delivery via first class post but if the tenancy agreement makes no reference in this area then it is highly advisable for the notice to be served in person and placed in the hands of the tenant. This makes the notice commence immediately.
If the tenant refuses to leave on the date specified in the notice then the landlord will need to apply to the courts for a ‘possession order’ and if the tenant stays beyond the date of the possession order the landlord will then need to apply for a warrant of possession (N325 form)where bailiffs will be used to evict the tenant.