Possession of Housing Act 1988 Tenancies

16 July 2023

Assured Tenancies

For a landlord to gain possession they must serve a Section 8 notice and prove one or more of the grounds (either mandatory or discretionary) for possession laid out in Schedule 2 of the Housing Act 1988. If a mandatory ground is proved, the court must give possession to the landlord. If a discretionary ground is proved, the court will not necessarily give possession to the landlord. They will only do so if they think it is ‘just and reasonable’ to do so.

Notice Periods

Different grounds need different notice periods and some grounds require prior notice to be given. This means that notice must be served on the tenant before the tenancy starts, stating that the landlord may rely on the ground later to regain possession.

Assured Shorthold Tenancies (ASTs)

Section 21 Notice

To end a tenancy at the end of a fixed term the landlord must serve notice under a Section 21 of the Housing Act 1988 and need not give any reason. If the tenant does not leave, the landlord still has to go to court, but the court must give possession. A Section 21 notice must be in writing, warn the tenant that a court order is needed to enforce possession and give at least two months’ notice.

Service Within the Fixed Term

Within the fixed term, a notice under Section 21(1)(b) is served. The notice period must be for a minimum of two months and cannot expire before the end of the fixed term, or must end in line with the timings of a break clause.

Service During a Periodic Tenancy

If the Section 21 is serviced during a periodic tenancy, the notice period will be a minimum of two months and must be in line with the period of the term and expire on the last day of the period.

With ASTs, possession can also be gained in exactly the same way as for assured tenancies if needed. This must be used if possession is needed within the fixed term or within the first six months of a tenancy that was initially created as a periodic tenancy.

Accelerated Possession Procedure

Quicker and cheaper, accelerated possession can be used where the tenancy is an AST created after 15 January 1989 where:

  • The tenant is the original tenant
  • A Section 21 notice has been correctly served and has expired, and
  • The landlord is only seeking possession (i.e. not claiming any rent arrears).

It still requires a court application and the landlord (or agent) must send all relevant documents to court. However, the application form must be signed by either the landlord or the landlord’s solicitors, not the agent. If these are in order and the tenant makes no representation within 14 days of being sent the documents, the court can grant a possession order without the need for a hearing.

Rent Act 1977 Tenancies

Rent Act 1977 tenancies have greater security of tenure and succession rights. They require written notice and the proving of one or more of the mandatory or discretionary cases under Schedule 15. Possession may also be given if suitable alternative premises are offered and the court thinks it is just and reasonable to do so.