Can this be done if the contract is still within a fixed term?
It is possible to evict a tenant within the fixed term of a contract.
In this case, you would seek possession using a Section 8 notice.
There are 17 grounds for eviction via a Section 8 notice:
1-8 are mandatory, i.e. the court must grant possession if the ground in question applies.
BUT
Section 7(6) of the Housing Act 1988
(6)The court shall not make an order for possession of a dwelling-house to take effect at a time when it is let on an assured fixed term tenancy unless (a)the ground for possession is Ground 2, Ground 7A], Ground 7B] or Ground 8 in Part I of Schedule 2 to this Act or any of the grounds in Part II of that Schedule, other than Ground 9 or Ground 16
So the court canât make an order for repossession during the fixed term for a section 8 notice based on ground 1.
Which contradicts the open rent article. V confused. I ask because I need to move back to my property. Tenant is ok with this but wonât simply leave, says she âneedsâ to be evicted. 6 months into a 3 yr AST. The AST does include the clause regarding repossession but it seems the housing Act makes that meaningless.
Firstly, you donât need to evict your tenant by serving notice if you both agree you are happy to end the tenancy. You can arrange a mutual surrender and end the tenancy like that.
Secondly, you will not be able to evict your tenants for several months because:
The emergency coronavirus bill going through parliament is extending the notice period required to three months, up from two previously.
The Master of the Rolls has suspeded all housing possession hearings for 90 days from March 27th
Finally, I think you may have misinterpreted the Housing Act 1988 section that you quote above.
The court shall not make an order for possessionâŚat a time when it is let on an assured fixed term tenancy unless the ground for possession isâŚany of the grounds in Part II, other than Ground 9 or 16.
Ground 1 is not ground 9 or 16. Therefore, this part of the act would not seem to mean that âthe court canât make an order for repossession during the fixed term for a section 8 notice based on ground 1â as you claim.
Hi Sam,
Yes you are right I would not be doing it now due to the situation we all have but Iâm still not clear about your reply ( in the nicest way:)
The act says " the court shall not make an order for possession unlessâŚ
unless (a)the ground for possession is Ground 2, Ground 7A], Ground 7B]
But my ground is ground #1 which isnât specified as allowed ⌠so Iâm confused. Can I or not? The article days I can, act says I canât
Hi, I have tried to re read the reply but its very back to front in its wording and I am still confused. This is not something I plan to do now (coronavirus etc) but I want to know what is correct. Can I repossess on ground 1 assuming I have the clause that says I might in the AST. The AST is not at its end (2 years to run)
The section you quote, above, is in the chapter of the Act describing Assured Tenancies. But the vast majority of tenancies are not assured. They are Assured Shorthold Tenancies (ASTs). Therefore, itâs very likely that the passage you quote is not relevant to your tenancy.
Ground 1 of Section 8 of the Act is a mandatory ground for repossession, requiring a minimum of 2 monthsâ notice in an AST.
I have been trying to find an answer to your exact question, and I believe that you are correct that Ground 1 cannot be used in the fixed term (although you could serve the Section 8 notice) for the reasons I set out below.
An Assured Shorthold Tenancy is a type of Assured Tenancy. This is explained here on Shelter Legal: Shelter Legal England - Definition of an assured shorthold tenancy
In particular it says: âAn assured shorthold tenancy is a type of assured tenancy, so all the requirements of an assured tenancy applyâ
This is because the Housing Act 1988 Chapter 2 defines an Assured Shorthold Tenancy as follows: âAn assured tenancy which [âŚsatisfies some conditionsâŚ] is an assured shorthold tenancyâ
Note that in the text of the Act, the Grounds themselves (which we all know apply to ASTs) are under a section titled âGrounds For Possession Of Dwelling-Houses Let On Assured Tenanciesâ. Schedule 2 Part 1 (which outlines the grounds for possession) does not even mention the word âshortholdâ (and it does not need to because an AST is a type of assured tenancy.
Therefore section 7(6) of the Housing Act 1988 will in fact apply to when Ground 1 is used for an AST.
Note that Section 21 however only applies to AST, but the Act makes this clear as Section 21 is titled âRecovery of possession on expiry or termination of assured shorthold tenancyâ (i.e. it does not just say assured tenancy as in Schedule 2).
One last reply from me today. If you look at the Model Agreement for an Assured Shorthold Tenancy and Accompanying Guidance on GOV.UK at this link, the guidance notes explain that Ground 1 can only be used once any fixed term has come to an end.
In particular, on page 44 it says in the Guidance Note âA landlord may seek to rely on ground 1 where he wants to get possession back at the end of the fixed termâ and further down the page it also says âGround 1 (this can only be used once any fixed term has come to an end)â.
I would expect/hope that the governmentâs own model AST is correct about the use of Ground 1!
