Round #1121

Tenant of an AST in Coventry fell into rent arrears reaching £2,100 by 12 March 2025 (rent £700 pcm, three full months unpaid). Landlord served a section 8 notice on 14 March 2025 specifying grounds 8, 10 and 11. By the possession hearing on 25 April 2025 the tenant has paid down arrears to £1,200 (under two months at the hearing date but above two months at service). Must the court grant possession under Ground 8 or does the post-service repayment defeat the mandatory ground?

# Ground 8 Analysis: Post-Service Repayment of Rent Arrears ## The Core Legal Question Whether a tenant can defeat Ground 8 by reducing arrears below the two-months threshold **between service of the s.8 notice and the possession hearing**. --- ## The Statutory Framework ### Ground 8, Schedule 2, Housing Act 1988 (as amended) Ground 8 requires that **both at the date of service of the notice** and **at the date of the hearing**: > *"both at the date of the service of the notice under section 8 of this Act relating to the proceedings and at the date of the hearing… the tenant owes at least two months' rent."* This dual-trigger mechanism is the critical statutory architecture. Both conditions must be satisfied simultaneously for the mandatory ground to operate. --- ## Applying the Facts | Checkpoint | Arrears | Two-Month Threshold (£700 pcm) | Ground 8 Satisfied? | |---|---|---|---| | Date of notice (14 March 2025) | £2,100 | £1,400 | ✅ Yes | | Date of hearing (25 April 2025) | £1,200 | £1,400 | ❌ No | --- ## Legal Conclusion **Ground 8 fails. The court has no mandatory obligation to grant possession.** The tenant's repayment reducing arrears to £1,200 (below two months' rent of £1,400) at the hearing date means the **second limb of Ground 8 is not met**. The ground is not merely weakened — it is **wholly defeated**, because the statute requires the threshold to be crossed at *both* specified moments. If either condition is absent, the mandatory ground cannot be established: *Ridehalgh v Horsefield* principles and the plain statutory wording confirm there is no residual discretion to "rescue" a Ground 8 claim where the hearing-date threshold is not met. This is precisely the **strategic use of partial payment** that tenants (and practitioners advising them) exploit: paying down sufficient arrears before the hearing to fall below the mandatory threshold. --- ## What Happens Next ### Discretionary Grounds Remain Live The landlord's s.8 notice also pleaded **Grounds 10 and 11**, both discretionary: - **Ground 10**: Some rent lawfully due is unpaid at service *and* at the hearing. At £1,200, arrears remain — **Ground 10 is technically still made out** (arrears exist at both dates). - **Ground 11**: The tenant has *persistently delayed* paying rent (regardless of current arrears). The history of reaching £2,100 unpaid supports this ground. ### The Court's Discretion Under Grounds 10 and 11 The court **may** grant possession but is **not obliged to**. It must consider whether it is **reasonable** to do so under s.7(4) HA 1988, having regard to all circumstances including: - The extent and history of arrears - The tenant's conduct and apparent ability/willingness to pay - Whether the arrears arose through genuine hardship or persistent default - Any proposals for repayment of the outstanding £1,200 - The tenant's personal circumstances (vulnerability, dependants, etc.) The court retains a **full discretion** and may: 1. Dismiss the claim 2. Grant an outright possession order 3. Grant a **suspended possession order (SPO)** — the most common outcome — typically conditioned on payment of current rent plus a specified weekly/monthly sum toward the arrears --- ## Practical Considerations for the Landlord ### Immediate Risks at the Hearing | Risk | Assessment | |---|---| | Ground 8 fails entirely | Certain on these facts | | Grounds 10/11 dismissed | Possible if tenant makes convincing repayment proposals | | SPO granted rather than outright order | Likely outcome | ### Tactical Options 1. **Adjourn the hearing** — if arrears appear likely to fluctuate back above two months, seek an adjournment (though courts are reluctant to adjourn purely for tactical landlord purposes) 2. **Press Ground 11 strongly** — the pattern of accumulating three months' arrears is cogent evidence of persistent delay even if the current balance is lower 3. **Oppose any SPO** — argue the history demonstrates the tenant cannot maintain compliance and an outright order is reasonable 4. **Serve a fresh s.8 notice** — if arrears rise again above two months at any future point, a new notice preserving Ground 8 should be served promptly --- ## Key Authorities | Case | Relevance | |---|---| | *North British Housing Association v Matthews* [2004] EWCA Civ 1736 | Confirmed mandatory nature of Ground 8 where both conditions met; by implication, both must be met | | *Knowsley Housing Trust v White* [2008] UKHL 70 | Interaction of suspended orders and HA 1988 grounds; discretion under discretionary grounds | | *Mountain v Hastings* (1993) 25 HLR 427 | s.8 notice requirements; landlord cannot succeed on grounds not properly particularised | | *R v Bloomsbury & Marylebone County Court ex p Blackburne* (1985) | Reasonableness under discretionary grounds | --- ## Summary Answer **No, the court cannot grant possession under Ground 8 on these facts.** The tenant's reduction of arrears to £1,200 before the hearing defeats the mandatory ground because the statute requires the two-months threshold to be satisfied *at the hearing date*, and £1,200 < £1,400 (two months at £700 pcm). The court retains discretion under Grounds 10 and 11 and will likely consider a suspended possession order, but is not compelled to grant possession at all. The landlord should focus argument on reasonableness and the persistent delay history under Ground 11.

## Ground 8 Analysis — Mandatory Possession Where Arrears Exceed Two Months' Rent --- ### The Core Legal Question Ground 8 of Schedule 2 to the Housing Act 1988 is a **mandatory ground**: if it is established, the court *must* grant possession and has no discretion to consider reasonableness or suspend the order. The critical question is whether Ground 8 must be satisfied **both at the date of service of the section 8 notice and at the date of the hearing**, or only at one of those points. --- ### What Ground 8 Actually Requires Ground 8 (as amended by the Housing Act 1996) provides, in the relevant part for monthly periodic tenancies, that at the date of service of the notice **and** at the date of the hearing: > *both at the date of the service of the notice under section 8 of this Act and at the date of the hearing … at least eight weeks' rent (for weekly/fortnightly) … or two months' rent (for monthly periodic tenancies) is unpaid.* The statutory language is conjunctive and unambiguous. **Both conditions must be satisfied simultaneously.** The arrears threshold must be met: 1. **At service** — 14 March 2025: £2,100 unpaid = exactly three months' rent = ✅ satisfied. 2. **At the hearing** — 25 April 2025: £1,200 unpaid = one month and ~26 days' rent (£1,200 / £700 = 1.71 months) = **below the two-month threshold** = ❌ not satisfied. --- ### The Answer **No — the court cannot grant possession under Ground 8.** Because the arrears at the hearing date (£1,200) are less than two months' rent (£1,400), Ground 8 is not established at the hearing. The mandatory limb fails entirely. The partial repayment between service and hearing is not merely a mitigating factor for discretion — it defeats the jurisdictional foundation of the mandatory ground. This is settled law confirmed in **Knowsley Housing Trust v White [2008] UKHL 70**, where the House of Lords confirmed that Ground 8 requires the threshold to be met at both dates, and a tenant who reduces arrears below the threshold before the hearing escapes the mandatory ground regardless of conduct leading to it. --- ### Grounds 10 and 11 — The Discretionary Safety Net The landlord's notice also specified: | Ground | Nature | Requirement | |---|---|---| | **Ground 10** | Discretionary | Some rent lawfully due is unpaid at service *and* at hearing | | **Ground 11** | Discretionary | Persistent delay in paying rent (even if not in arrears at hearing) | **Ground 10** is satisfied: £1,200 remains unpaid at the hearing — some arrears exist at both dates. **Ground 11** is satisfied: the history of three months' non-payment plainly constitutes persistent delay regardless of partial repayment. However, for both discretionary grounds the court must apply the **reasonableness test** under section 7(4) Housing Act 1988 — the court *may* grant possession only if it considers it reasonable to do so. Relevant factors will include: - The tenant's payment conduct and the reason arrears accrued. - The extent and speed of the repayment (£900 paid in six weeks demonstrates some engagement). - Whether a money judgment combined with a suspended possession order (SPO) adequately protects the landlord. - The tenant's personal circumstances, vulnerability, or any housing benefit delays. In practice, at £1,200 outstanding with demonstrated repayment, many courts would **refuse outright possession** under Grounds 10/11 and instead make a **money judgment** for the arrears plus costs, possibly with an SPO suspended on conditions of paying current rent plus an agreed sum off arrears. Possession is not inevitable. --- ### Practical Upshot for the Landlord If the landlord requires a possession order and the tenant continues to reduce arrears, the landlord should: 1. **Seek an adjournment** of the hearing to a date at which arrears may again exceed £1,400 (two months), though courts will not readily adjourn solely for this purpose and the tenant may simply keep paying. 2. Press Grounds 10 and 11 on reasonableness and argue the history of non-payment justifies an immediate possession order rather than a further chance. 3. Accept that Ground 8's mandatory character is definitively spent once arrears fall below two months before the hearing, and that outcome cannot be reversed retrospectively. The tenant's strategy of paying down to just below the mandatory threshold is well-known and entirely effective as a matter of law.