As the Renters Reform Bill proposes abolishing Section 21 of the Housing Act 1988, assuming it passes into law, landlords will need to get used to the brave new world of Section 8. Once the Renters Reform Bill becomes law, the updated Section 8 Grounds for Possession will be the only way for landlords to terminate tenancies and evict tenants.
In this blog post, I explain how the new, consolidated Section 8 Grounds for Possession would work for private landlords. I do this by standing back from the myriad of new and revised grounds, to categorise them into practical groups. The first category is where a landlord wishes or is required to regain possession for specific reasons. The second group is where the tenant is at fault, and the third is very miscellaneous grounds that don’t fall into the first two!
I’ve written the blog post using the wording in the 17 May 2023 draft of the Renters Reform Bill. I’ll update it if the provisions change during its journey through parliament.
It’s a mega cornerstone blog post, but you can easily jump to relevant sections by clicking on the contents below.
Overview: Terminating tenancies after the Renters Reform Bill
- What is the Renters Reform Bill trying to achieve with the revised Grounds for Possession?
- Overview of the Renters Reform changes to the Grounds of Possession
- The Updated Grounds for Possession: Reasons due to the landlord
- The Updated Grounds for Possession: Reasons due to the tenant
- Grounds for Possession: Other reasons to evict
- What evidence will landlord need to show to the court for Section 8?
- Discretionary Grounds: it reasonable to evict?
- Final thoughts
What is the Renters Reform Bill trying to achieve with the revised Grounds for Possession?
Part 1 of the Housing Act 1988 deregulated private sector tenancies. It introduced assured shorthold tenancies that were not subject to rent control and which were easy for landlords to terminate. It became relatively straightforward for landlords to evict tenants and regain possession of their properties.
Section 21 enables landlords to do regain possession without having to give a reason, let alone establishing that the tenant is at fault.
However, this relatively unfettered ability for landlords to terminate tenancies has become increasingly unpopular over the years. This culminated in the White Paper A Fairer Private Rented Sector published. in June 2022. The White Paper spelt out the government’s aim to “level the playing field” between landlord and tenant. They proposed removing Section 21 in order to “incentivise landlords to engage and resolve issues”. In return, they would reform the Section 8 Grounds for Possession “so that they are comprehensive, fair, and efficient, striking a balance between protecting tenants’ security and landlords’ right to manage their property.”
After consultation and a review by the Levelling Up Committee, the government published the proposed new regime in the Renters Reform Bill.
The notes to the Bill explain that the reform of the Grounds for Possession is intended to ensure “landlords can still recover their property” when they wish to sell or move in close family, and also “make it easier for landlords to repossess their properties where tenants are at fault, in cases of anti-social behaviour and repeat rent arrears”.
Overview of the Renters Reform changes to the Grounds of Possession
The Renters Reform Bill builds on top the existing division of Mandatory and Discretionary Grounds for Possession, and creates a new regime for landlords to terminate tenancies and evict tenants.
Mandatory Grounds are where the court is required to order possession if the landlord can prove the Ground applies. With Discretionary Grounds, the court will only grant the landlord possession if it concludes it is reasonable to do so. The judge also has wide powers to adjourn (postpone) cases involving Discretionary Grounds.
Almost all of the existing Mandatory Grounds have been widened or simplified. This will make it easier for landlords to regain possession in the absence of Section 21.
There are a number of entirely new Mandatory Grounds. They’ve been slotted in, which is what makes the Renters Reform Bill resemble alphabet soup, rather than renumbering the whole lot. They will help landlords in many cases where they might have previously used Section 21.
For a full analysis, with tables showing what has been changed and what the notice periods are, click here for my post Making Sense out of the New Section 8 Grounds for Possession.
The Updated Grounds for Possession: Reasons due to the landlord
The first category of Grounds for Possession is when a landlord says to a tenant: “It’s not you, it’s me.” In other words, it’s a “no fault” situation on the part of the tenant. Here, the landlord needs to regain possession due to their own personal circumstances.
1. Landlord intends to sell up (Ground 1A – Mandatory)
This is a new mandatory Ground in the Renters Reform Bill where the landlord “intends to sell” the property. This Ground can’t be used until the tenancy has lasted for at least 6 months on the date the notice is issued.
As there’s no existing Ground for Possession for where the landlord intends to sell the property, landlords have relied on Section 21 to sell a property with vacant possession. The Bill doesn’t explicitly say the landlord needs to provide evidence of an intention to sell. It will be for the court to decide if a landlord’s intention is genuine.
The Bill doesn’t reflect the argument made by (for instance) Generation Rent to the Levelling Up Committee (see para 39), that landlords should be encouraged to sell with sitting tenants by requiring the property to be advertised for sale with sitting tenants for six months before an eviction notice can be served.
Provided the landlord can convince the court of a genuine intention to sell, they’ll be able to sell with vacant possession using Ground 1A. As it’s a Mandatory Ground, the court will not need to consider whether it’s reasonable to evict the tenant.
2. Landlord or family intends to move in (Ground 1 – Mandatory)
The existing Ground 1 has been widened to make it easier for the landlord to recover possession to allow them or their family move in. The landlord’s family includes their spouse or civil partner, and the landlord’s parent, grandparent, sibling, child or grandchild. It also includes the curiously termed “half-blood” relations, but does not include cousins or nieces/nephews.
The current wording of Ground 1 is restricted to occupation by the landlord or their spouse, and is limited to specific circumstances. The proposed amended Ground 1 will therefore make it fairly straightforward for landlord to obtain possession. However, they will need to satisfy the judge that they or a member of their extended family genuinely intends to move in.
3. Redevelopment by landlord (Ground 6 – Mandatory)
The existing Ground 6 is unamended by the Renters Reform Bill.
By way of reminder, the landlord must show they “intend to demolish or reconstruct the whole or a substantial part of the dwelling-house or to carry out substantial works” to the whole or a considerable part of the property. Also, they must be able to show that the work can’t be reasonably done while the tenants are living in the property.
An example might be a back-to-brick refurbishment to bring the property to an EPC C, or other substantial work.
It can’t be used by landlords who purchased the property with the tenants as sitting tenants. The landlord isn’t required to provide alternative housing.
4. Property being repossessed by mortgage company (Ground 2 – Mandatory)
The existing Ground 2 has been amended so the property may be sold by the mortgagee, even if the landlord has refinanced during the tenancy.
It also removes the requirement to provide prior notice to the tenant that this Ground may be used.
5. Enforcement action against landlord (Ground 6A – Mandatory)
The new Ground 6A requires the court is required to award possession if the landlord needs to end a tenancy because it would be unlawful for them to maintain the tenancy due to enforcement action against them. For instance, a banning order, overcrowding, refusal or revocation of an HMO licence, or where the number of tenants exceeds the number in the HMO licence.
Although I see the logic, I can understand why this new Ground 6A is attracting a lot of criticism. It embeds moral hazard, as it allows a landlord to benefit from their own breach of the law. It’s worth pointing out that there is already a mechanism in place for this situation: interim management orders under the Housing Act 2004.
The Updated Grounds for Possession: Reasons due to the tenant
The next category of Grounds of Possession is where the landlord seeks repossession due to a fault on the part of a tenant. In other words: “It’s you, not me”.
1. Tenants are behind with rent (Grounds 8 &8A – Mandatory; Ground 10 – Discretionary)
The Renters Reform Bill significantly extends the existing Section 8 Grounds to enable landlords to evict tenants for rent arrears.
Repeated Rent Arrears (Grounds 8 & 8A – Mandatory)
The new Mandatory Ground 8A entitles a landlord to evict a tenant if at least two months’ rent has been unpaid for at least a day on at least three separate occasions. Until now, tenants have been able avoid eviction under Ground 8 by reducing the arrears to just under two months by the time of the court hearing.
Landlords will not need to have served notice or begun possession proceedings under Section 8, so long as the tenant has breached the two months’ arrears threshold three times within three years.
Grounds 8 and 8A will not be met if the arrears are due to the non-payment of Universal Credit, provided they were entitled to receive it. This means that landlords have no recourse if the payment of benefits are delayed.
Rent arrears of any amount (Ground 10 – Discretionary)
The existing Ground 10 is unchanged. This is a Discretionary Ground which enables a landlord to seek possession if any amount of the rent is in arrears both at the time of the service of the notice and at the time of the court hearing.
2. Anti-social behaviour / crime (Ground 7A – Mandatory and Ground 14- Discretionary)
The Renters Reform Bill proposes making two changes relating to anti-social behaviour on the part of tenants. Despite being trumpeted in the Anti-Social Behaviour Action Plan published in March 2023, the amendments are distinctly underwhelming:
Serious anti-social behaviour (Ground 7A – Mandatory)
The Bill reduces the notice period for serving a Section 8 Notice for serious anti-social behaviour on the part of tenants in Ground 7A. This means that landlords will be able to make a claim for possession immediately in the event of serious anti-social behaviour.
Anti-social behaviour (Ground 14 – Discretionary)
Another underwhelming amendment is changing Ground 14 to include tenant behaviours that are “capable of causing” nuisance or annoyance. At present, Landlords need to show that behaviour was “likely to cause” a nuisance or annoyance.
I’m not sure there is much difference between “capable of causing” and “likely to cause”, apart from it being a slightly lower bar. In any event, the ground is discretionary, so judges will need to decide whether eviction is a reasonable and proportionate response.
3. Breach of tenancy agreement (Ground 12 – Discretionary)
Ground 12 is unchanged in the Renters Reform Bill and entitles a landlord to seek possession if the tenant breaches a term in the tenancy agreement, other than rent. It might include keeping a pet or breaching the pet policy, or failing to look after the garden.
As with all Discretionary Grounds, the judge will need to agree it’s reasonable to evict the tenant because of their breach of contract.
4. Deterioration of the property / furniture (Grounds 13 & 15 – Discretionary)
There are no changes to Discretionary Grounds 13 and 15. Here is a reminder:
- A landlord can use Ground 13 where the condition of the building and any common parts have “deteriorated owing to acts of waste by or the neglect or default of” the tenant, a member of the tenant’s family or someone else living there.
- Ground 15 can be used when it is the condition of the furniture that deteriorates for the same reasons.
4. No right to rent (Ground 7B – Mandatory)
This is another Discretionary Ground that is unchanged by the Renters Reform Bill. It applies where theHome Office has served notice on the landlord that one or more (but not all) of the tenants or occupiers in the property have no right to rent because of their immigration status. Click here for resources on the right to rent.
Where there’s a joint tenancy and the other tenant has a right to rent, it will be possible for the court to transfer the tenancy to that person.
5. False statement made by tenant (Ground 17 – Discretionary)
This is another existing Ground which is unchanged by the Renters Reform Bill.
This Ground may be used “the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant or someone acting at their “instigation”.
6. Death of tenant (Ground 7 – Mandatory)
No change to Ground 7. The landlord must start possession proceedings within 12 months of the death of the former tenant.
Grounds for Possession: Other reasons to evict
In this final miscellaneous category, the reasons for eviction are for employment-related accommodation, supported housing or the homelessness duty.
1. Employment-related reasons (Grounds 5, 5A, 5B and 5C – Mandatory)
These new new Mandatory Grounds all relate to employment-related housing. This includes “ministers of religion”, agricultural workers and where private registered providers of social housing offer employment-related tenancies, such as housing for ‘key workers, such as nurses.
Mandatory Ground 5C was previously discretionary Ground 16, and applies to the situation where an employer lets property for work-related purposes and that employment has ceased.
2. Supported Housing (Grounds 5E & 5F – Mandatory; Ground 18 – Discretionary)
These new specialist Grounds apply to supported housing, termed “supported accommodation” in the Bill, which is accommodation let for the purpose of providing the tenant with care, support or supervision.
Ground 5E applies where the landlord intends to use the property for supported housing, and the current tenancy wasn’t granted for that purpose.
Grounds 5F and 18 allow providers of supported housing providers to end a tenancy where it is necessary to enable them to continue to operate safely, effectively or otherwise protect the viability of their service.
3. Homelessness Duty (Ground 5G – Mandatory)
The new Mandatory Ground 5G enables private landlords and private registered providers of social housing wish to end a tenancy. The tenancy must have been granted to allow a local housing authority to deliver the main housing duty under Section 193 Housing Act 1996.
This Ground can only be used when the local authority has notified the landlord that the tenancy is no longer required. The local authority isn’t required to say why the tenancy is no longer required. There is a 12 month window.
The Explanatory Notes to the Renters Reform Bill provide the context for this new Ground. Local authorities work with private landlords and private registered providers of social housing to deliver temporary accommodation for households owed the main housing duty under Section 193 Housing Act 1996. “Once the local authority ends the duty (either by an offer of settled accommodation or for another specified reason) or no longer requires the property to provide temporary accommodation for that household (for example because a different property has been identified for the household), landlords may seek to evict tenants. This practice ensures a continued supply of temporary accommodation. Landlords must have a clear mechanism to gain possession in these circumstances to enable this practice to continue.”
4. Issues with superior lease (Grounds 2ZA & 2ZB – Mandatory)
These are two very specific new Mandatory Grounds.
The new Mandatory Ground 2ZA applies where the landlord has a tenancy from superior landlord, and either a valid notice for that tenancy has been served or the tenancy will end within 12 months. It only applies to registered providers, supported accommodation provider, agricultural tenancies or where the landlord is 50% owned by a local authority.
Ground 2ZB is applicable to a landlord who became the landlord under Section 18 Housing Act 1988. Here the previous landlord must have been a registered provider, supported accommodation provider, agricultural tenancy or a landlord owned 50% by a local authority. It must be within 6 months of the new landlord becoming the landlord.
What evidence will landlord need to show to the court for Section 8?
Unlike Section 21, landlords who wish to use a Section 8 Notice will need to provide evidence to the court that the relevant Ground applies to their circumstances.
The tenant may also submit evidence to the contrary. A tenant can defend a possession claim by persuading the judge that the landlord’s Ground hasn’t been proved. This means the tenant needs to convince the judge that their argument is more likely than the landlord’s to be true, on a balance of probabilities.
The judge examines the evidence from both the landlord and the tenant when coming to a decision.
Discretionary Grounds: it reasonable to evict?
For Discretionary Grounds, the judge can only grant possession if they are satisfied that eviction would be reasonable in the circumstances.
The court also has wide powers of adjournment in cases involving discretionary grounds.
The abolition of Section 21 will take a lot of getting used to for landlords. Until now, landlords have been able to serve a Section 21 Notice, without having to give the reasons why. Provided they’ve followed the process and complied with the relevant landlord duties, they know they’ll obtain possession of their property.
In the new post-Renters Reform Bill world however, landlords will need to go to court and provide evidence of the Grounds they are relying on. Also, in the case of Discretionary Grounds, they’ll need to persuade the judge that eviction is reasonable.
Landlords will still be able to evict tenants when the Renters Reform Bill comes into force. But they will need to gather evidence, document their case, and spend (probably) money on lawyers.
Let’s hope the court system will be ready – current delays in Section 8 cases are unacceptably long. But that is a subject for another day.
I will keep this blog post updated when more information becomes available.