This case emphasises the importance of choosing the right grounds on which to seek possession of your property.
In this case, the landlord rented a property to the Defendants, who occupied it as their ‘only or principal home’. They held an Assured Shorthold Tenancy under the provisions of the Housing Act 1988, and the term was due to end on 30 November 2019.
The Defendants fell into substantial (more than 2 months’ rent) arrears in 2019, and the Claimant served a s21 Notice, which is a ‘no fault’ eviction notice, as well as a Notice Seeking Possession under s8 of the Act. The latter relied on arrears of rent, and threatened proceedings under grounds 8, 10 and 11 (all of which relate to late and non-payment of rent).
As no rent was forthcoming, the claimant started proceedings in November 2019, however the only basis of the claim was the s21 notice, not rent arrears. The Claimant sought to amend the application to also plead the grounds 8, 10 and 11. This was denied as the s21 requirements were satisfied and a possession order was granted. The Claimant applied for a Warrant of Possession which was granted on 14 February 2020.
Then Covid happened.
The coronavirus pandemic brought in an ‘eviction ban’ which prevented landlords from evicting their tenants. There were however exceptions to the ban, such as when there are ‘substantial rent arrears’ defined as more than six months’ worth, and only then when the order for possession had been partly or wholly granted on ground 8, 10 or 11 Housing Act 1988. The claimant sought to argue that they should be able to obtain possession based on this exception.
The Claimant argued that the factual basis of the claim was one of substantial arrears, and that the legislation should be read to give effect to Article 1 of the Convention on Human Rights (right to peaceful enjoyment of possessions) as well as Article 14 (protection from discrimination (between those who had s21 as opposed to s8 orders).
The judge in question doubted the human rights angle to the case, but he considered whether a convention right was engaged. The court was satisfied that the ‘eviction ban’ did interfere with the landlord’s Article rights, however the interference was held to be justified.
The judge held that exception to the eviction ban was limited to orders given on s8 grounds, and that the explanatory notes to the legislation said that the exception was deliberately designed to be narrow. The judge was mindful of not defeating the intention of the law. Therefore, the Claimants could not obtain possession of the property.
Comment
No one could have predicted that the pandemic would produce such results, and the court was mindful of the exceptional circumstances which were in play. Overall, the key message from this case would be that, if you can evict a tenant on more grounds than one, it is better to place them all on the claim form at the start rather than rely on applications to amend or on judicial discretion.
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.
Alina Dewshi
July 2021
