Grounds for possession for non-payment of rent – assured and assured shorthold tenancies

If rent arrears occur during the fixed term of an assured or assured shorthold tenancy, the landlord can only seek possession during the fixed term if the tenancy agreement has a clause providing for this and if one of the grounds for possession in schedule 2 of the Housing Act 1988 apply.

The grounds which must apply are either

If rent arrears occur during the fixed term of an assured or assured shorthold tenancy, the landlord can only seek possession during the fixed term if the tenancy agreement has a clause providing for this and if one of the grounds for possession in schedule 2 of the Housing Act 1988 apply.

The grounds which must apply are either

• ground 8 (substantial rent arrears),
• ground 10 (rent arrears) or
• ground 11 (persistent delay in paying rent).

In the case of an assured tenancy, after the fixed term comes to an end the landlord must continue to rely on these three grounds to get possession for non-payment of rent.

If the tenancy is an Assured Shorthold Tenancy then do not forget that during the fixed term a landlord can give two months notice (the notice must not expire before the end of the tenancy) under Section 21 of the Housing Act 1988 and thereby take possession action immediately after the Notice has expired at the end of the fixed term.

Under an assured shorthold tenancy, after the fixed term has ended and the tenancy becomes periodic the landlord can serve notice under grounds 8, 10 or 11 or he can simply gain possession using a section 21 notice (no grounds need apply). To use the section 21 procedure the landlord will have to give 2 months notice, expiring on the last day of a tenancy period. More details on serving section 21 notices are available in the module ‘Ending a Tenancy’.

Ground 8 relates to serious rent arrears and is the main mandatory ground which will be used by landlords. The court must grant possession if the landlord’s case is proved.

This ground will be satisfied if both at the time of service of any section 8
notice and at the time of the court hearing, the tenant is in arrears of rent of either

• two months (where rent is paid monthly) or
• eight weeks (where rent is paid weekly).

So if the rent is £400 a month or £100 per week, the arrears must total £800 or more at both these two dates. Note that if the rent is not paid by the date specified in the tenancy, arrears for the period exist. Therefore two months arrears could exist after one month & one day of non-payment, not two calendar months.

If the tenant brings the arrears down to less then two months before or at the hearing for possession the ground will not be made out. (However the landord will have the rent.)

Note that it is unwise to use ground 8 if the tenant has a valid ground for complaint, as they could seek to defend and counter claim on this basis. It is wise therefore to resolve any disputes, for example regarding disrepair, before proceeding to recover possession based on the rent arrears ground.

Ground 10 is simply that some rent is lawfully due from the tenant and remains unpaid both at the time when notice was served and at the time when the possession hearing takes place. A landlord may want to use Ground 10 where the tenant is not yet in arrears of two months or 8 weeks.

Ground 11 is that, regardless of whether there are any rent arrears, the tenant has persistently delayed paying rent which is lawfully due.

Grounds 10 and 11 are discretionary grounds for possession which means that the court may or may not grant possession. The judge can suspend the order for possession if he thinks it appropriate (which he frequently will) which means that even though the landlord may have an order for possession he may not be able to actually get his property back. Even if the tenant breaches the order, judges will often re-instate a suspended order if they consider it reasonable.

The landlord can seek possession for rent arrears using any one or a combination of grounds 8, 10 and 11. When serving notice under Ground 8 the landlord should also use Grounds 10 and 11 so that if the rent arrears are brought down below two months before the date of hearing the claim for possession can continue under Grounds 10 and 11. In that case the court may still order possession or it may issue a suspended possession order on condition that the rent and an element of the arrears is met each and every week.