Here is the wording in the Schedule:
Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice and (in either case)—
(a) at some time before the beginning of the tenancy, the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them occupied the dwelling-house as his only or principal home; or
(b) the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them requires the dwelling-house as his, his spouse’s or his civil partner’s only or principal home and neither the landlord (or, in the case of joint landlords, any one of them) nor any other person who, as landlord, derived title under the landlord who gave the notice mentioned above acquired the reversion on the tenancy for money or money’s worth.
Now lets pick it apart.
Serving prior notice
What this tells us is that the landlord must have given notice at the start of the tenancy that they will be using this ground to regain possession but that the court can dispense with it if they consider it just and equitable to do so.
A bit of a vague term so how does it work in practice?
There are several bits of case law that relate specifically to the court dispensing with service of the notice, where for instance oral notice was given which was not disputed by the tenant and the landlord would have been at greater hardship had the court taken a hard line on proof of prior notice being served.
What is important to note is that the courts must take into account all of the circumstances before deciding to dispense with the notice. Factors such as whether or not the tenant or landlord would suffer particular hardship if possession was not granted for want of prior notice.
Also, note that this ground cannot be used by an incoming landlord who purchased the property after the tenant moved in.Landlord’s occupation
There are two limbs to this. Firstly
- EITHER the landlord must have lived the property at some point in the past before the tenant moved in. It didn’t have to be their only home but they must have genuinely lived there, even if their occupation was intermittent or temporary. If there are joint landlords then it can be acceptable if only one of them had lived there previously
- OR the landlord wants it for themselves, their spouse or civil partner’s sole or principal home.
There are cases where it was held that occupation both prior to the letting or as intended occupation after possession need not be permanent and can be intermittent.
This is a mandatory ground, meaning if you have served prior notice and can prove the circumstances that satisfy this ground then the judge has no choice but to grant outright possession.
Note that part (b) of this ground can’t be used simply because you want to sell the house or because you want anyone other than your spouse or civil partner to occupy as their home, not your brother, children etc.
Defending this ground
Well, the first thing a defence advocate would want to see is the prior notice and would talk to the tenant to establish whether or not they actually received it and confirm that they received it at the start.
There isn’t a specific form for the notice, a letter would suffice and as mentioned above in some cases oral notice can be sufficient, provided there is no dispute over it. In many cases though the landlord will have put the notice in the tenancy agreement – which will be unarguable.
What the tenant or their representative would then be looking for would be proof that the property had been genuinely occupied previously by the landlords, or in the case of joint landlords just one of them.
Quite a difficult thing to ascertain and if the case was picked up at the last minute and there was a shadow over whether or not this assertion was true then an adjournment could be requested to allow time to clarify if this was indeed the case.
Bank statements, letters, payslips all addressed to the property at dates in the past could help but might not be conclusive depending on what other evidence is on the table which might indicate that the landlord was merely keeping the property as a mailing address for convenience.
For the second limb of this ground, where the landlord (or one of them in the case of joint landlords) wants the property for occupation by themselves, their spouse or civil partner, an advocate would look closely at who is intending to occupy.
Note that the ground does not state ‘Occupation by son or daughter’ for instance.
Also, proof should be sought of the intended occupation. If the advocate finds the property up for sale on Rightmove or a local estate agent this may persuade a judge that possession should not be granted.
So there you have it, the ground explained and the various kinds of defence that can be used against them.
Notes from Tessa
This ground tends not to be used much nowadays (even where it is clearly available), mainly because landlords prefer to use section 21 – because it is better known and they can use the accelerated procedure. However with the increasing regulation surrounding section 21, it is likely that this ground may start to be more popular.
In fact, if you are a landlord and are renting out a property you have previously lived in or which you may live in, in the future – you are STRONGLY advised to put a ground 1 notice in your tenancy agreement (precedents are available on my Landlord Law site). Goodness knows what else may have been done to section 21 by the time you want to use it …
Useless facts – back in 1989 when the Housing Act first come into force, you COULD use the accelerated procedure for ground 1 but later this was changed so that the accelerated procedure can only now be used for section 21 claims. I have a feeling that the form was N5a (which is why the s21 form is N5b) but I see that form number is now being used for something else.
In the next part, we look at Ground 2. Where a mortgagee is entitled to sell