The End of Section 21 – Protecting Your Position – Ground 1

This is part of a series of articles for landlords on preparing for the removal of the no-fault ground for possession under section 21. 

Part 5. Using Ground 1 Notices

After the no-fault possession procedure under section 21 is removed, the only route to possession for most tenancies will be via a section 8 notice.  Which must cite one or more of the many grounds for possession set out in Schedule 2 of the Housing Act 1988.

One of the grounds, which tends to be underused, is ground 1.

This reads as follows:

Ground 1

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.

Let’s take a look at this.

1 Landlords who previously lived at the property

There are two circumstances under which you can take advantage of this ground and the first is that you must have previously lived at the property as your ‘only or principal home’.

The section does not say how long you must have lived at the property as your main home, just that you must have done so. I suspect that it would have to be at least a few months to qualify though although the section does not actually say so.

So you could arguably buy a property every two years or so and live at all of them for a period of six months to a year before renting them out.

In this way, you could claim the benefit of ground 1 for all your properties – whether you were going to live in them after the possession proceedings or not.

You would need to be able to prove that you had lived at the property so you would need to keep records for example of Council tax notices, utility bills etc.

It would also be a good idea to go on the electoral register while you are living there and retain proof of this also. Then your right to use ground 1 could not be challenged.

2 Landlords who are going to live at the property

However, it is not necessary to have actually lived at the property to take advantage of ground 1. You can also, under (b) use it if you intend to live at the property after possession has been obtained.

This sub-section is really aimed at people who buy retirement homes, maybe while they are living elsewhere – for example, military personnel who live in military housing.  Note that it can’t be used by landlords by purchase.

However, so long as you are the original landlord and are able to prove to the Court, if challenged, that you really do intend to live at the property – there is no reason why you should not succeed in your claim.

However this is subject to the next point:

3 Notice must be provided in advance.

To be able to use ground 1 as of right, you must have given the tenants notice, normally in your tenancy agreement (the first one if you give successive tenancy agreements) of your intention to use, or reserve the right to use, ground 1 at some stage in the future.

This means that your tenants are always aware of the possibility that you might use ground 1 and so cannot complain when you do so.

If the notice is not given, it is possible to seek to persuade the Judge ‘that it is just and equitable to dispense with the requirement of notice’ but this effectively turns the ground from a mandatory one to a discretionary one.

So if you think you may ever want to use ground 1 it is ESSENTIAL that you ensure that the notice is included in your tenancy agreement from the start.

I would recommend that in all cases where it is even remotely possible that you may want to use ground 1 at some stage – the notice is included in your tenancy agreement as standard.

We have an option to include it with most of my Landlord Law tenancy agreements.

It won’t always be appropriate. For example, if you rent out numerous bedsits. However, I suspect that it could be used far more often than it is.

The benefits of using Ground 1

Section 21 rules have over time become increasingly complex. In some circumstances, you may not be able to use it at all. However, if you have served a ground 1 notice on tenants at the start of the tenancy you will be able to obtain possession without much problem.

Provided you are able to prove, on the balance of probabilities (which is the standard of proof for civil claims), that you have either lived at the property as your ‘only or principal home’ or that you intend to do so once possession is obtained.

You won’t be able to use the more straightforward ‘accelerated procedure’ which is reserved for section 21 claims, but your possession claim hearing should be fairly straightforward.

Looking to the future

This ground is almost certain to be retained in some form in any new legislation which is passed when section 21 is done away with.

So landlords who make a practice of living at their properties for a while will always have a secure ground to use for possession.

In the meantime, it would be no bad thing to get into the habit of including a ground 1 notice whenever possible, just in case. It means you will always have a second string to your eviction bow.