Can a landlord of a periodic assured shorthold tenancy (AST) rely on the discretionary ground 14 (nuisance) in a notice pursuant to section 8 of the Housing Act 1988 to obtain possession, where the AST does not contain any grounds for possession?

Can a landlord of a periodic assured shorthold tenancy (AST) rely on the discretionary ground 14 (nuisance) in a notice pursuant to section 8 of the Housing Act 1988 to obtain possession, where the AST does not contain any grounds for possession?

This Q&A assumes that the property is in England and the landlord is a private landlord, not a social housing provider.

In normal times, the simplest way to seek possession of an assured shorthold tenancy, the fixed term of which has expired (or is about to do so), is by serving a section 21 notice (section 21 of the Housing Act 1988 (HA 1988)) and the use of accelerated possession proceedings.

However, under the Coronavirus Act 2020 and related regulations, from 29 August 2020, the notice required to be given in a section 21 notice is six months, so some alternative mechanisms may be more attractive (see Practice Note: Coronavirus (COVID-19)—implications for property, in particular section ‘Residential tenancies—protection from eviction in England and Wales—CA 2020, s 81 and Sch 29’).

HA 1988, Sch 2, Pt I contains the grounds on which landlords may seek possession of assured (including assured shorthold) tenancies. Ground 14 (nuisance or annoyance or illegal or immoral use of the property) has no notice period: possession proceedings may be begun immediately after the notice is served (see News Analysis: English residential possession notices—an analysis of the Coronavirus Act 2020 and consequential amendments to English regulations in respect of possession notices).

The issue raised in this question is whether ground 14 may be relied upon when the tenancy agreement does not refer to any grounds for possession and no prior notice has been given that the landlord may rely on such grounds.

Certain grounds (which are referred to as ‘fixed term grounds’ in Practice Note: Assured and assured shorthold tenancies—terminating) may only be relied upon to terminate a fixed term assured tenancy if the tenancy agreement makes provision for it to be ended on that ground (HA 1988, s 7(6)). This includes ground 14. However, in this question, the fixed term of the tenancy has ended and a periodic tenancy has arisen, so this limitation does not apply.

In other cases, prior notice of the landlord’s intention to rely on certain grounds must be given. This is the case for grounds 1–5, but not ground 14. As such, that ground may be relied upon.

As is mentioned in the question, ground 14 is one of the ‘discretionary grounds’, meaning that the court must be satisfied that it is reasonable to make a possession order even if the grounds are made out (HA 1988, s 7(4)).

For guidance on the service of a section 8 notice and bringing possession proceedings relying on that section, see Practice Note: Assured and assured shorthold tenancies—terminating (from section ‘Section 8’ notice onwards) and News Analysis: Checklist for post-COVID-19 assured or secure tenancies including mandatory grounds (not including AST accelerated possession procedure) (note, however, that some of the steps in the checklist apply to social landlords only).

The current moratorium on evictions does not include cases brought under ground 14. The moratorium is due to end on 11 January 2021, but may be continued on the same terms, in which case, the exclusion will be helpful to the landlord in this scenario. See Practice Note: Coronavirus (COVID-19)—implications for property—Possession claims, in particular sub-section: Evictions—truces.

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