Discretionary grounds for possession: Assured and Assured Shorthold tenancies
27th Oct 2010

Discretionary grounds for possession: Assured and Assured Shorthold tenancies

As a general rule landlords will not wish to use any of the discretionary grounds as most landlords will want to be certain that they will obtain possession (or in the case of serious rent arrears, the rent).

There are number of potential disadvantages of basing a claim for possession solely on discretionary grounds:

As a general rule landlords will not wish to use any of the discretionary grounds as most landlords will want to be certain that they will obtain possession (or in the case of serious rent arrears, the rent).

There are number of potential disadvantages of basing a claim for possession solely on discretionary grounds:

  • they give a window of opportunity for the tenant to defend
  • the tenant may be able to obtain legal aid to defend
  • the judge will normally be sympathetic towards the tenant as they will potentially be made homeless which is a serious matter. Judges do not like making tenants homeless, particularly if there are children
  • if the landlord loses, he will probably be ordered to pay the tenant’s legal costs (which if he has obtained legal aid could be substantial), and
  • where possession is obtained under a discretionary ground, the judge can suspend the order for possession if he thinks it appropriate (which he frequently will).

This means that even though the landlord may have an order for possession he may not be able to actually get the property back. Even if the tenant breaches the order, judges will often re-instate a suspended order if they consider it reasonable.

Discretionary grounds 9 to 17 for possession

Ground 9

That there will be suitable alternative accommodation available for the tenant if a Possession Order is made.

The Landlord must pay the tenant’s reasonable removal expenses if a Possession Order is made. A tenant can oppose a Possession Order on this ground if the alternative accommodation is not suitable.

Ground 10

Rent which is lawfully due from the tenant has not been paid by the time the possession proceedings are started and was owed at the time the Notice seeking possession was served.

If a tenant has been offering the Landlord rent and the Landlord refused to take it, the tenant will have a defence to the possession proceedings but must pay the amount owed in to court.

Ground 11

The tenant has repeatedly failed to pay rent on time. There need not be rent arrears at the time possession proceedings are started.

Ground 12

The tenant has breached their part of the Tenancy Agreement.

Ground 13

The tenant, or anyone living with him/her have allowed the property or parts of it (including common parts) to deteriorate.

If the deterioration has been caused by someone living with the tenant, and the tenant has failed to get rid of that person then a Possession Order may be made.

Ground 14

The tenant or a person living with him/her or visiting him/her has caused or is likely to cause a nuisance or annoyance to neighbours or their neighbours, guests or visitors to the area. Or the tenant has been convicted of using the property for immoral or illegal purposes or has been convicted for an arrestable offence committed in the area.

Ground 14A (does not apply to private landlords)

A married couple or common law couple live in the property and one of them is the tenant of the property and one of them has left the property because of violence or threats of violence from the other partner or a member of that partner’s family who is also living in the property.

The Landlord must be a Housing Association/Trust etc. (but not a private landlord) to be able to use this ground. The court also has to be satisfied that the partner who has left the property is unlikely to return. Also the partner who has left must be served with a Notice seeking possession so they know about the possession proceedings.

Ground 15

Furniture at the property has deteriorated because the tenant or someone living with the tenant has not looked after the furniture.

If the damage has been caused by someone living with the tenant and the tenant has not taken steps to get rid of that person then a Possession Order may be made against the tenant.

Ground 16

The property was let to the tenant as part of his/her employment with the Landlord and the tenant is no longer employed by the Landlord and the property is needed for another employee.

Ground 17

The tenant or one of the tenants, or person acting on the instruction of the tenant has given false information to the Landlord which has made the Landlord grant the tenancy.