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Section 8: What are the differences between mandatory grounds & discretionary grounds?

21 November 2023

In a new series – ‘What does the law say?’ – our property litigation specialists discuss the key parts of residential possession law landlords and tenants should be aware of.

Section 8 notices under the Housing Act 1988 are currently used for assured shorthold tenancies where the tenant is at fault and the landlord wants to recover possession of the property, due to rent arrears, anti-social behaviour or breach of the tenancy agreement. There are also some grounds covering very specific reasons the landlord needs to evict the tenant which is outside of the tenant’s control, such as the property being required for a minister of religion, the property requiring redevelopment or the landlord needing to move back into the property.

Section 8 grounds are split into two categories: mandatory and discretionary grounds. Where a mandatory ground is relied upon and the court agrees that the requirements have been satisfied, it is mandatory for the court to grant a possession order. However, where only discretionary grounds are relied upon, it is for the court to decide whether or not to grant a possession order.

If you are a landlord looking to recover possession of the property, you can rely upon as many grounds under Section 8 as you can satisfy and, wherever possible, should always look to rely upon at least one mandatory ground.

In brief, the most commonly used grounds are currently as follows:

Mandatory grounds

Ground 1: The landlord wants to move back into the property which they used to occupy as their main home, and the tenant was previously notified of this being a possibility.

Ground 6: The property requires redevelopment.

Ground 8: The tenant is in at least two months’ rental arrears.

Discretionary grounds

Ground 10: The tenant is in at least some arrears.

Ground 11: The tenant has persistently delayed paying rent.

Ground 12: An obligation under the tenancy agreement has been broken, other than payment of rent.

Ground 13: The tenant has caused the property to deteriorate.

Ground 14: The tenant is causing nuisance or annoyance to people residing in the property, visiting the property and/or the landlord.

For some of the grounds, there is further documentation or particulars which should be served with the notice in order to comply with all of the requirements for that ground.

Each ground also has a specific notice period to be given to the tenant. It is important that, for your notice to be valid, you provide the correct notice period. You certainly do not want to serve a notice which you believe to be correct, then wait for the notice to expire, only to be told by a legal adviser or the court that it was incorrect. To avoid this situation, be sure to get some advice before serving a notice.

If you are looking to serve a Section 8 notice on your tenant, please contact our team of property dispute specialists. We would be happy to assist and can advise you on the relevant grounds and requirements.

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Disclaimer: All legal information is correct at the time of publication but please be aware that laws may change over time. This article contains general legal information but should not be relied upon as legal advice. Please seek professional legal advice about your specific situation - contact us; we’d be delighted to help.
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