Is this the end of 'no-fault' possession orders for Assured Shorthold Tenancies?

Updates to the Housing Act 1988 – is this the end of ‘non-fault’ possession orders for Assured Shorthold Tenancies? 

Under the current provisions, Landlords in England and Wales are able to regain possession of their property from a tenant without first establishing that the tenant has breached any terms of the tenancy agreement. The process is known as the ‘Section 21 route’ as the governing legislation forms part of Section 21 Housing Act 1988. 

Provided that the Landlord is able to establish that he/she has given at least two months notice of their intention to regain possession to their tenant, and possession is not sought before the end of the fixed term, the court’s hands are tied and an order for possession becomes mandatory upon the Landlord’s request. 

The Section 21 route is currently a very effective way for a Landlord to regain possession whilst maintaining an amicable relationship with their tenants. It also provides for a level of certainty for Landlords who may decide to sell their property with many opting for 6 month fixed terms in their agreements to allow for a sale in the not so distant future. A special feature of the Section 21 route is that, because no fault is alleged and the legislation provides that an order for possession is mandatory, there is usually no requirement for either party to attend at an oral hearing. This is obviously very cost effective for Landlords who avoid the need to pay the costs of a hearing and also the costs of an advocate to represent them at the same. 

Recent proposals by the government have been to abolish Section 21 in its entirety. The government has cited its concerns that tenants are being unfairly evicted by Landlords; some of whom then go on to struggle to find alternative accommodation and end up relying upon the assistance of their respective local authorities.  Whilst no changes have formally taken place (and are not planned to in the very near future) many Landlords have decided to accelerate their future plans in order to regain possession of their properties before the legislation is amended. 

Removal of Section 21 will not leave Landlords high and dry however. The alternative route for possession afforded by the Housing Act rests in Section 8. In order to regain possession using the Section 8 route, a Landlord must first establish fault using one or more of the ‘Grounds’ found at Schedule 2 of the same Act.

The problem with these Grounds is that a Landlord is by no means guaranteed an order for possession like they be would using the Section 21 route*. Grounds 1-8, if established, will give rise to a mandatory order for possession however establishing one or more of Grounds 9-17 gives the court the requirement only to consider whether an order would be appropriate and their discretion is the only consideration required. 

Many Landlord Associations are intending to lobby against the proposed changes with a number already fearing that their members will be stuck with their tenants in situ indefinitely. 

We are yet to find out from the Government when these changes are likely to be enacted. The fact remains however that there are uncertain times ahead for Landlords and considerations should be made for the future of their rented properties. 

*save as for arguments raised by the tenant in light of disrepair and landlord failures etc 

Sam Seagraves - Solicitor, Dickinson Parker Hill


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