Before we launch into our exhaustive look at all the Schedule 2 grounds in the Housing Act 1988, I just want to pause and take a look at what I consider to be the most important issue for you if you are a private sector landlord (different considerations apply in the public sector, which I will leave to Ben to talk about).
This is something which affects which ground you should use and whether certain grounds should be used at all. In fact what I am about to talk about will actually render most of the grounds redundant.
What am I talking about?
Mandatory and Discretionary grounds
When landlords look through the list of the grounds in Schedule 2 they often get quite excited.
“Breach of tenancy terms? My tenant is always doing that”
“The condition of the property having deteriorated? You should see what a mess they keep it in”
“Causing a nuisance to neighbours? I am constantly being rung up about their parties” …
However, all of these are discretionary grounds. Which means, in my book, that they should not be used. Landlords should, save in exceptional cases, stick to the mandatory grounds and avoid the discretionary ones like the plague.
Why should landlords avoid discretionary grounds?
As Ben rightly said last week, when you bring a claim for possession, you have to prove your case. If you are using a mandatory ground – that’s ALL you have to do.
So provided you can prove that the arrears comply with ground 8 or that the circumstance of one of the other mandatory grounds are proved – the tenants cannot defend the case. The Judge may think it’s a bit unfair that (for example) the tenant should be evicted when the reason is they in arrears is because they lost their job due to an accident, but they can’t refuse to make the order.
All the Judge can do is give them time to move out (and more on this below).
However if you are bringing a claim on the basis that the tenant has allowed the condition of the property to deteriorate (or whatever) – the tenant can defend this, even if they are clearly ‘guilty’, on the basis that although, yes they have done whatever-it-is, it is unreasonable for them to be evicted because of it.
There are a number of consequences which follow on from this.
- If a defence is filed (and you can’t prevent a defendant doing this or be sure that he won’t – even if he says he won’t) the case will not be concluded at the initial hearing (as it usually is with a mandatory ground) as there won’t be enough time to deal with it. The Judge will invariably adjourn it to another hearing – and due to the pressure on court time, it will then be unlikely to come before the court again for several months
- The Judge, when making the order, will also order that various documents and reports be produced by the parties to allow him to assess the validity and reasonableness or otherwise of the landlord’s claim and the tenant’s defence
- If the tenant is on benefit they may be able to get legal aid to defend the case
The upshot of this is that the case will become long drawn out and expensive. This will be particularly the case if the tenant gets legal aid (or free representation). To deal with the procedure and paperwork landlords will really need to use solicitors, or they will be at a disadvantage. Which means that the case will become very expensive.
Suspended orders / costs
If, at the end of all this, the Judge decides that the tenant’s conduct does merit an order for possession, in most cases they will not order possession outright, but make what is called a ‘suspended’ order.
This is ‘giving the tenant a chance’ – and the order for possession is suspended on the basis that the tenant will refrain from doing whatever-it-is. Or, for discretionary rent arrears grounds, that the rent arrears will be paid off by instalments.
If, on the other hand, the Judge decides NOT to make an order for possession and dismisses the claim, landlords will almost always be ordered to pay the tenant’s legal costs. If the tenants were represented by solicitors, eg under legal aid, this could prove very expensive.
Problems with bailiffs appointments
Even if you get an order for possession, there are still going to be problems.
Where a tenant under the ‘sword of Damocles’ of a suspended order lapses and does whatever-it-is, or in rent arrears cases, fails to pay the instalments, the landlord has the right to instruct the bailiffs. Without making another court application.
This sounds good, you may think (if you are a landlord). However what often happens is that the tenant, finding that a bailiff appointment is imminent, will apply to the court for a ‘stay of execution’. At the hearing, they will assure the Judge that the lapse was an aberration and that it will never happen again.
In most cases the Judge will give them a stern talking to, and reinstate the suspended order.
Contrast this to possession orders based on mandatory grounds. Here ALL the Judge can do is delay possession for up to six weeks from the date the order was made. Once that six weeks is over the tenant has no power to delay the bailiff’s appointment any further.
When I acted for landlords in eviction claims, my experience is that landlords, having screwed themselves up to instruct solicitors (not something they normally want to do) generally just want the tenant to go.
- They do not want a situation where the best they can hope for is a suspended order where, provided he behaves himself, the tenant can stay on.
- Neither do they want to be placed in a situation where they are at risk of paying hefty costs orders to the tenant’s solicitors!
This is why my advice to landlords is to ALWAYS avoid discretionary grounds. Save in very exceptional circumstances. And in all my 20+ years of doing eviction work, I only ever came across one case where I felt this would be justified – and then the tenant fell into arrears of rent so we found we had a mandatory ground after all!
In this series, we will be looking at all the grounds, including the discretionary ones. However please bear in mind that for private landlords, the discretionary grounds are in most cases, MOST inadvisable.