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
| Ground | When you can use this ground |
|---|---|
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1: The landlord requires possession in order that they may live in the property |
You must have:
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2: The property is subject to a mortgage granted before the start of the tenancy and the lender is seeking possession of it |
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3: The property is normally occupied as a holiday let |
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4: The property is normally let to students by an educational institution, such as a university |
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5: The property is used by a minister of religion as a residence from which to perform the duties of their office |
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Mandatory grounds for possession that don't require prior written notice
| Ground | When you can use this ground |
|---|---|
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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. |
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7: The previous tenant has died and the new tenant isn't entitled to 'inherit' the tenancy from them |
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7A: Antisocial behaviour |
A court must grant an order for possession if the tenant, or someone living in or visiting the property, has:
In addition, their conduct must have taken place:
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. |
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7B: No right to rent |
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. |
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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:
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Discretionary grounds for possession
| Ground | When you can use this ground |
|---|---|
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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. |
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10: Rent arrears |
Rent is lawfully due from the tenant and:
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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. |
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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). |
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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. |
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14: Nuisance or use for immoral/illegal purposes |
The tenant or a person residing in or visiting the property:
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14A: Domestic violence |
This applies to a landlord who is a Housing Association or Trust and not a private landlord. |
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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. |
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15: Disrepair to the furniture |
the tenant hasn't taken reasonable steps for the removal of any third party causing the damage. |
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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. |
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17: Misrepresentation |
The landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by:
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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)
- Ground 7A (antisocial behaviour)
- Ground 8 (rent arrears)
- Discretionary Grounds 10-15 and 17
Debt respite scheme
This scheme enables people in debt to apply for a period of formal 'breathing space'. If you're informed that your tenant has been granted breathing space, this will affect the possession procedure. In particular, during the breathing space period:
- You can't send the tenant a section 8 notice
- You can't apply for a possession order
- The court is unlikely to enforce any possession order it's granted.
There are 2 types of breathing space:
Standard breathing space
This lasts for 60 days, although can be cancelled before then. To get it, the tenant must speak to a professional debt advisor.
Mental health crisis breathing space
To be eligible for this, the tenant must be receiving mental health crisis treatment as defined in the debt respite scheme. It lasts for however long their mental health crisis treatment lasts, plus 30 days after that treatment ends. It can be cancelled before then.
The tenant doesn't have to get debt advice from a debt advice provider, but an approved mental health professional must certify that the tenant is receiving mental health crisis treatment.
Getting the breathing space period cancelled
If you feel that the breathing space unfairly prejudices your interests or that there has been some reason why it shouldn't have been granted, you can request that the debt advisor reviews it. If they don't then cancel it and you feel this decision is wrong, you can apply to the county court.
More information
See the guidance on the debt respite scheme on GOV.UK.