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B. Assured tenancies - Grounds for possession
As well as serving a notice of intention to bring proceedings for possession, or persuading the court to dispense with such a notice, a landlord must satisfy the court that one of the grounds for possession set out in Schedule 2 exists. Some grounds for possession are mandatory, whereas others are discretionary, with a requirement that the landlord must convince the court that it is reasonable to make an order for possession as well as satisfying the ground for possession.

Note that some of these grounds for possession may also be relied upon by landlords during the fixed term of an assured shorthold tenancy - see below.

1. Mandatory Grounds
Ground 1 Returning Owner Occupier
A landlord must prove that:
(a) at, or before, the grant of the tenancy the landlord gave notice in writing that possession might be recovered on this ground. The notice need not be in any particular form and may be included as a recital in any tenancy agreement provided that the agreement does not operate retrospectively. The court has power to dispense with such a notice if it considers it just and equitable.
Boyle v Verrall [1997] 04 EG 145, 29 HLR 436, CA. (In determining whether it is just and equitable to dispense with notice, the court should look at all the circumstances of the case. If oral notice was given when a tenancy was granted, it may be an important factor favouring dispensation. However it does not follow that oral notice is a prerequisite for such a decision. On the other hand absence of oral notice is not a reason for restricting dispensation to circumstances where there is an "exceptional case". A tenant's persistent late payment of rent is a relevant circumstance.)

Mustafa v Ruddock (1998) 30 HLR 495, CA. Matters relevant to the exercise of discretion included:
a) the original letting purported to be an assured shorthold;
b) the proceedings were undefended. There was no evidence of hardship to the tenant;
c) there was genuine hardship to the landlord;
d) the error arose through the mistake of the landlord's agent who was now bankrupt.
The failure to notify the tenant that possession might be required was an important factor but in no way conclusive.

Hegab v Shamash June 1998 Legal Action 13, CA. The Court of Appeal stated that it was "inherent in . . . deciding what was just and equitable [to take] into account all the circumstances". The Court allowed the tenant's appeal because the judge had failed to take into account two matters, namely the fact that the tenant had paid a deposit of £4,000 in relation to a proposed purchase of the premises which had not been refunded and that the landlord had not paid the costs of earlier proceedings concerning an illegal eviction by the landlord.

AND EITHER

(b) at some time before the grant of the tenancy the landlord, or if there are joint landlords, at least one of them, occupied the dwelling-house as his or her only or principal residence. A landlord's previous occupation may be temporary and intermittent in order to suffice - see Naish v Curzon (1984) 17 HLR 220, CA and Mistry v Isidore (1990) 22 HLR 281, CA cf Ibie v Trubshaw (1990) 22 HLR 191, CA.

OR

(c) the landlord (or at least one of them) "requires the dwelling-house as his or his spouse's only or principal home". The landlord need not show that the premises are reasonably required, merely that the landlord "bona fide wants" or "genuinely has the immediate intention" of occupying the premises (Kennealy v Dunne [1977] QB 837, CA). Premises need not be required as a permanent residence and fairly intermittent residence will be sufficient (Naish v Curzon (1984) 17 HLR 220, CA).

This ground for possession is not available to a new landlord who has acquired the premises "for money or money's worth" from an original landlord who gave a notice that possession might be recovered under this ground. (Epps v Rothnie [1945] KB 562, CA).

Ground 2 Mortgagees
This ground applies if :
(a) a mortgagee is entitled to exercise a power of sale (e.g. if the mortgagor has defaulted on instalments of the mortgage) and

(b) the mortgagee requires vacant possession to exercise that power and

(c) a Ground 1 notice was given before the commencement of the tenancy or the court considers it just and equitable to dispense with the notice.

(NB comments of Lord Denning MR in Quennell v Maltby [1979] 1 WLR 318.)

Ground 3 Tenancy preceded by "holiday let"
A landlord must prove that:
(a) not later than the grant of the tenancy, notice was given that possession might be recovered under this ground and;

(b) at some time during the twelve months prior to the grant of the tenancy, the dwelling-house was occupied for a holiday.

The court has no power to dispense with service of the notice required prior to the grant of the tenancy.
Fowler v Minchin (1987) 19 HLR 224, CA
but cf Springfield Investments v Bell (1990) 22 HLR 440, CA.

Ground 4 Educational Institutions
This ground applies where, during the twelve months preceding the tenancy, premises were let by a specified educational institution. As with Ground 3, notice stating that this ground may be relied upon has to be served before the commencement of the tenancy. See the Assured and Protected Tenancies (Lettings to Students) Regulations 1998 SI No. 1967.

Ground 5 Ministers of Religion
This ground applies to premises which are "held for the purpose of being available for occupation by a minister of religion as a residence from which to perform duties of his office". Notice that possession might be required must be served before the grant of the tenancy and the landlord must satisfy the court that the property is required for occupation by a minister of religion as a residence.

Ground 6 Demolition or Reconstruction
This ground is available for a landlord who "intends to demolish or reconstruct the whole or a substantial part of the dwelling-house or to carry out substantial works". This ground is very similar to Landlord & Tenant Act 1954 s.30(l)(f).

(a) It has been held that "reconstruction" means "a substantial interference with the structure of the premises and then a rebuilding, in probably a different form, of such part of the premises as has been demolished by reason of the interference with the structure".
Joel v Swaddle [1957] 3 All ER 325 at 329.
Barth v Pritchard [1990] 20 EG 65.

(b) The landlord must show that the intention will be fulfilled shortly after the date of the hearing (Betty's Cafe v Phillips [1958] 1 All ER 607, HL). There are two elements to the concept of intention:-
(i) a genuine desire that the result will come about and
(ii) a reasonable prospect of bringing about that result.
Edwards v Thompson [1990] 29 EG 41. The landlord failed to prevent the grant of a new tenancy because she had not found a developer at the time of the hearing and "there was a real possibility that [she] would not be in a position to carry out the entire development on the termination of the current tenancy. . . . She had failed to show that she had the means and ability; she had not established the necessary intention."
It is not essential that a landlord obtain planning permission in advance if it can be shown that there is a reasonable prospect of getting consent. (Gregson v Cyril Lord [1962] 3 All ER 907).

(c) The landlord must show that, because of one of four specified reasons, the intended work cannot reasonably be carried out without the tenant giving up possession of the premises. "Possession" means "putting an end to legal rights of possession" and not merely access. (Heath v Drown [1972] 2 All ER 561 and HA 1988 s.16).

(d) This ground is not available to a landlord who has acquired his or her interest in the property by purchasing it after the grant of the tenancy.

(e) When a possession order is made under this ground the landlord must pay a sum equal to the tenant's reasonable removal expenses (section 11(1)).

Ground 7 Death of the Tenant
Although an assured tenancy may pass by will or on intestacy after the death of a tenant, the landlord may obtain possession if proceedings are brought within twelve months of the death of the tenant or the date upon which the landlord became aware of the death. "Proceedings for possession" means court proceedings, not the service of a s8 notice (Shepping v Osada [2000] 30 EG 125, [2001] L&TR 489, CA).
This ground does not apply if a spouse succeeds to the tenancy under section 17. The Act specifies that acceptance of rent after the death of the former tenant should not be regarded as creating a new tenancy unless the landlord has agreed in writing to a change in the terms of the tenancy, such as an increase in rent.

Ground 8 Two months' rent arrears
As amended by Housing Act 1996 s101.
This is the first of three distinct grounds for possession based on rent arrears, although in practice most landlords plead all three in the alternative. Under Ground 8, two months' rent arrears (or eight weeks' arrears in the case of a weekly tenancy) give a landlord an automatic right to a possession order. However the landlord must prove that there are two months' arrears, both at the time when the notice of the landlord's intention to bring proceedings is served and at the date of the hearing.

Judges are entitled to find that Ground 8 is satisfied despite the fact that housing benefit is owed by the local authority (Marath v MacGillivray (1996) 28 HLR 484, CA, where the local authority paid benefit after the hearing with the result that the arrears were reduced below the Ground 8 threshold).

N. B. Day v Coltrane [2003] EWCA Civ 342; [2003] 1 WLR 1379. Delivery of a cheque is a conditional payment. If it is agreed (either expressly or through a course of dealing) that payment may be made by cheque, "where a cheque is offered in payment it amounts to a conditional payment.... from the time when the cheque was delivered" provided that it clears. That principle applies to Ground 8. If a cheque clears on presentation, the debt is paid when the cheque was delivered. An un-cleared cheque delivered to the landlord at or before the hearing and which was accepted by him, or which he was bound by an earlier agreement to accept, is to be treated as payment on the date of delivery provided it was subsequently paid on first presentation.

If possession proceedings are brought during the fixed term of a tenancy, there is no power to grant relief from forfeiture - County Courts Act 1984 s138 does not apply - Artesian Residential Investments v Beck [2000] QB 541, [2000] 2 WLR 357, CA, but does the court have power to adjourn for a short period so that those problems can be sorted out? In North British Housing Association Limited v Matthews [2004] EWCA Civ 1736; [2005] 2 All ER 667, the Court of Appeal held
• The court cannot be satisfied that the landlord is entitled to possession before the date of the hearing. The date of the hearing is the date when the claim is heard. It is not the date fixed for the hearing if, on that date, an adjournment is granted without a hearing taking place at all.
• There is no doubt that it is a perfectly proper exercise of the court's discretion to adjourn, if a case has to be taken out of the list because there is no judge available, or because there has been over-listing, or because the defendant is prevented by ill-health from attending court.
• The court retains jurisdiction to grant an adjournment before it is satisfied that the landlord is entitled to possession. It may be a proper exercise of discretion to adjourn the hearing before the court is satisfied that the landlord is entitled to possession - e.g. where there is an arguable claim for damages which can be set-off against arrears; where the tenant shows that there is an arguable defence based on accord and satisfaction or estoppel arising from an agreement whereby the landlord accepts an offer by the tenant to pay off the current rent and arrears at a certain rate in return for not pursuing the claim for possession; or where the court is satisfied that there is a real chance that the tenant would be given permission to apply for judicial review of the landlord's decision to claim possession because of abuse of power.
• However it is not legitimate to adjourn to enable the tenant to pay off arrears and so defeat the claim for possession, unless there are exceptional circumstances - e.g. if a tenant is robbed on the way to court, or if a computer failure prevents the housing benefit authority from being able to pay benefit due until the day after the hearing date. The fact that arrears are attributable to maladministration on the part of the housing benefit authority is not an exceptional circumstance.
• Once the court has expressed the conclusion that it is satisfied that the landlord is entitled to possession, there is no power to grant an adjournment in any circumstances (see s9(6)). The court cannot be "satisfied" within the meaning of s9(6) until the judge has given a judgment and effect is given to that judgment in a perfected order of the court.

With all "rent arrears" grounds, there may be
(a) the possibility of a defence of set off, based on a counterclaim for breach of repairing obligations (express terms, Landlord and Tenant Act 1985 section 11, Defective Premises Act 1972, quiet enjoyment etc).
British Anzani (Felixstowe) v International Marine Management [1980] 1 QB 137
Chiodi v De Marney [1988] 41 EG 80, CA
Davies v Peterson (1989) 21 HLR 63, CA

or
(b) a defence relying upon Landlord and Tenant Act 1987 s48
Dallhold Estate v Lindsey [1992] 23 EG 112, CA
Hussain v Singh [1993] 31 EG 75, CA
Rogan v Woodfield Building Services [1995] 20 EG 132, CA
Drew-Morgan v Hamid-Zadeh (2000) 32 HLR 316,CA

2. Discretionary Grounds
Ground 9 Suitable Alternative Accommodation
The availability of suitable alternative accommodation, either at the time of the hearing or when the order is to take effect, is a ground for possession. Part III of Schedule 2 gives further clarification as to the matters to be taken into account when determining whether or not accommodation is suitable. When a possession order is made under this ground, the landlord must pay a sum equal to the tenant's reasonable removal expenses (section 11(1)).

Ground 10 Rent Arrears
A landlord must prove that there were rent arrears both at the date when proceedings were begun and, unless the court considers it "just and equitable" to dispense with the need for service of a notice prior to issue, that there were arrears when the notice was served. In theory a possession order may be made even if the arrears are paid off before the hearing, although in most circumstances there would be strong grounds for arguing that it would not be reasonable to make an order.
Dellenty v Pellow [1951] 2 All ER 716, CA
Lee-Steere v Jennings (1987) 20 HLR 1, CA

Ground 11 - Persistent Delay in Paying rent
Even if there are no arrears on the date when possession proceedings are issued, persistent delay in paying rent which is due is a ground for possession. The phrase "persistent delay" is not defined, but is likely to have the same meaning as in Landlord and Tenant Act 1954 s30(1)(b) - i.e. one instalment of rent has been in arrear for a significant period of time or instalments have persistently been paid late, or both.
Hopcutt v Carver (1969) 209 EG 1069
Horowitz v Ferand [1956] CLY 4843 (cc).

Ground 12 Breach of any obligation
This ground applies if "any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed".

Ground 13 Waste or Neglect
This ground applies not only to premises let, but also to common parts.

Ground 14 Anti-social behaviour
Amended Ground, as inserted by Housing Act 1996 s148.

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 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.

There is no requirement that any person visiting the premises and causing a nuisance should be there lawfully. The ground is wide enough, for example, to encompass behaviour by a former partner of a tenant who has been excluded, but returns contrary to the tenant's wishes.
For the definition of "indictable offences", see For the definition of "indictable offences", see the Interpretation Act 1978, Sch.1.
See too Northern British Housing Association v Sheridan, (2000) 32 HLR 346, CA.

Indictable offences do not have to have been committed during the currency of the tenancy if a tenant pleads guilty or is convicted after the grant of the tenancy. See Raglan Housing Association Ltd v Fairclough [2007] EWCA Civ 1087; [2008] HLR 21.

Ground 14A - Domestic Violence
As inserted by Housing Act 1996 s149
This ground applies where one of both partners is a tenant and
(a) one partner has left because of violence or threats of violence by the other towards that partner or a member of that partner's family; and

(b) the court is satisfied that the partner who has left is unlikely to return.

Landlords seeking to rely upon this ground must satisfy the court that notice of proceedings for possession has been served on the partner who has left the home or that they have taken reasonable steps to effect service (Housing Act 1996 s150).

Where possession is sought under Ground 14A, it is not sufficient that the alleged violence or threats of violence were merely one of a range of causes of equal efficacy in the victim's departure from the property. For the ground to be made out, it has to be established that the alleged violence or threat of violence was the dominant, principal and real cause of the departure (Camden LBC v Mallett (2001) 33 HLR 204, CA).

Ground 15 Deterioration of furniture

Ground 16 Premises let to employees
An employer who has let accommodation to an employee "in consequence" of employment may claim possession if the tenant has "ceased to be in that employment". It applies whether or not the employer requires the premises for another employee.

Ground 17 - Tenancy induced by false statement
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.

This ground was introduced by Housing Act 1996 s102 and is identical to Housing Act 1985 Sched 2 Ground 5 as amended.

C. Reasonableness
The criteria for establishing whether or not it is reasonable to make an order for possession against an assured tenant are the same as those used in proceedings against secure tenants.

See e.g. West Kent Housing Association v Davies (1998) 31 HLR 415, CA.

As to suspension of possession orders, see s9 and the notes on Housing Act 1985 s85 above. Section 9 "gives a wide power to stay or suspend an order for possession which is applicable to all cases except those where it is expressly excluded by statute." The power may be exercised where circumstances have changed since the original hearing, even where an outright order was made by a different judge (Ujima HA v Smith April 2001 Legal Action 22, (2000) October 16, ChD, where the defendant was by the time of the application to suspend accepting her legal responsibility for serious damage to a shared kitchen and offering to pay £150 in compensation). Note also Plymouth CC v Hoskin [2002] EWCA Civ 684, 1 May 2002.

The same points about "consent orders" made in respect of secure tenancies apply to assured tenancies. The jurisdiction of the court to make an order for possession under Housing Act 1988 s7 (the comparable provision for assured tenancies) is limited. If the court is not satisfied that a ground under Sched. 2 has been established it does not have jurisdiction to make the order. A court is under a duty to determine whether the relevant ground has been established, whether or not it has been raised by the parties. Where a court lacks jurisdiction, it cannot be conferred merely by consent. To confer jurisdiction an admission that a ground is satisfied, either express or implied, has to be clearly shown. Any consent order should clearly spell out in express terms the admission made by the tenant, or the court should ask the tenant what admission was being made, so that there can be no room for confusion or doubt in the future. (Baygreen Properties Ltd v Gil [2002] EWCA Civ 1340; [2003] HLR 12. - "possession order by consent" approved by circuit judge set aside).

After an outright order
In a case where an outright order for possession was made under Housing Act 1988 Sched 2, Ground 8, but the landlord subsequently accepted the tenant's offer to pay rent and £100 per month off arrears, the Court of Appeal held that the landlord had done nothing to affect the legal relations between the parties. No new or different terms were come to. The landlord had no intention to create a new tenancy. The legal relations between the parties were governed by the terms of the order until the landlord took a position inconsistent with the order. (Stirling v Leadenhall Residential 2 Ltd [2001] EWCA Civ 1011, [2002] 1 WLR 499, CA)

Breach of suspended possession orders
Breach of a suspended possession order by an assured tenant does not terminate the tenancy and convert an assured tenant into a tolerated trespasser - see Knowsley Housing Trust v White [2008] UKHL 70; 10 December 2008.


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