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Section 21: What could the new repossession process look like?

Sally Walmsley
Written by Sally Walmsley

The government has yet to launch its consultation following the announcement it will be axing Section 21, the so-called no fault eviction.

The RLA is currently running a major survey asking members and other landlords what they think change should look like.

More than 5,000 landlords have already responded.

In his written statement on the planned reform, published after the announcement, Housing Secretary James Brokenshire promised that the PRS would remain a ‘stable and secure’ market for landlords and that the new legislation will ‘include measures that provide landlords with additional safeguards to successfully manage their properties’.

He said these reforms would include the strengthening of Section 8 and court reform, two issues the RLA has been campaigning on for some time. 

However, there is little more detail available on what exactly the changes will entail.

The Scottish equivalent of Section 21 – Section 33 – was scrapped in December 2017 with the Scottish government instead introducing 18 mandatory and discretional grounds for repossession.

While there is no guarantee this government will follow their lead, it could give an indication of what is to come.

Under the Scottish model grounds for repossession are as follows: 

Mandatory grounds

A mandatory ground means that if the Tribunal agrees that the ground exists, the tenant must leave the property no matter what their argument is.

1. Landlord intends to sell the let property

This ground applies if you plan on putting the property up for sale within three months of a tenant moving out. 

2. Property to be sold be lender

This ground applies if your mortgage lender wants to repossess the property and sell it.

3. Landlord intends to refurbish the let property

This ground applies if you want to carry out major works to the property that are so disruptive a tenant wouldn’t be able to live there at the same time. 

4. Landlord intends to live in the let property

This ground applies if you want the tenant to move out of the property so you can move in. 

5. Landlord intends to use the let property for non-residential purpose

This ground applies if you want a tenant to move out so you can use the property for something other than a home. 

6. Let property required for religious worker

This ground applies if the property is held to be available for someone who has a religious job like a priest, nun, monk, imam, lay missionary, minister, rabbi. The ground only works if the property has been used for this purpose before.

7. Tenant has a relevant criminal conviction

This ground applies if the tenant is convicted of an offence punishable by imprisonment that involved them either:

  • using the property for illegal reasons
  • letting someone use the property for illegal reasons
  • committing a crime within or near the property

8. Tenant is no longer occupying the let property

This ground applies if the property isn’t being used as a tenant’s main or only home.

Discretionary grounds

A discretionary ground means that even if the Tribunal agrees that the ground exists, it still has to decide whether it is reasonable to issue an eviction order.

9. Landlord’s family member intends to live in the let property

This ground applies if a member of your close family plans to move into the property as their only or main home for at least three months.

10. Tenant no longer needs supported accommodation

This ground applies if the tenant moved into the property because they had a need for community care and they’ve since been assessed as no longer having that need.

11. Tenant has breached a term of the tenancy agreement

This ground applies if the tenant hasn’t complied with one of the terms of tenancy.

12. Tenant has engaged in relevant antisocial behaviour

This ground applies if the tenant has behaved in an antisocial way to another person. The First-tier Tribunal will consider the behaviour, who it involved and where it occurred to decide whether to issue an eviction order.

13. Tenant has associated in the let property with someone who has a criminal conviction or is antisocial

This ground applies if the tenant lets someone into the property and they behave in an antisocial way.

14. Landlord has had their registration refused or revoked 

This ground applies if you aren’t registered as a landlord in the local council area where the property is located.

15. Landlord’s HMO licence has been revoked

This ground applies if the HMO (House of Multiple Occupancy) licence for the property has been removed and keeping all the tenants in the property would no longer be legal.

16. An overcrowding statutory notice has been served on the landlord

This ground applies if an ‘overcrowding statutory notice’ has been served on you because the property is overcrowded to the extent that it may affect the health of the people living there.

Grounds which could be mandatory or discretionary

The final two grounds can be either mandatory or discretionary, depending on the circumstances of the case.

17. Tenant is in rent arrears over three consecutive months

This ground applies if the tenant has been in rent arrears for three or more months in a row.

If they still owe at least a month’s rent by the first day of the Tribunal hearing, the ground is mandatory, and the Tribunal must issue an eviction order. The Tribunal must also be satisfied that the arrears were not due to a delay or failure in the payment of a relevant benefit.

If they owe less than a month’s rent (or are no longer in arrears) by the first day of the Tribunal hearing, the ground is discretionary, and the Tribunal will decide whether it is reasonable to issue an eviction order.

In deciding whether it is reasonable to evict, the Tribunal will consider whether the tenant being in arrears is due to a delay or failure in the payment of a relevant benefit.

18. Tenant has stopped being (or has failed to become) an employee

This ground applies if you let the tenant move in because they were your employee (or were going to be), and now they aren’t.

  • What do you think? We would be interested to hear your thoughts on the Scottish model in the comments box below, and – if you haven’t already – would invite you to take the survey here to make sure your voice is heard.

About the author

Sally Walmsley

Sally Walmsley

Sally Walmsley is the Communications Manager for the RLA and award-winning Editor of RPI magazine. With 16 years’ experience writing for regional and national newspapers and magazines she is responsible for producing articles for our Campaigns and News Centre, the weekly E-News newsletter and editorial content for our media partners.

She issues press releases promoting the work of the RLA and its policies and campaigns to the regional and national media and works alongside the marketing team on the association’s social media channels to build support for the RLA and its work.

3 Comments

  • Scottish Discretionary Ground 11 – Tenant has breached a term of AST. Sounds very open/broad a term – the Conservative Govn’t for England ISN’T proposing such a ground – they appear to be restricting it to a) Arrears – at least 2 mths – and b) ASB. And what would an English/Scottish court accept anyway??
    I’ve issued a Sec. 21 on 2 occasions NOT related to the 2 grounds above.
    One was where I found out at least 1 extra person was living in prop (which Tenants denied!). Initially, I was going to issue Sec. 21 – instead, I naively agreed to draw up new AST to include the 3rd person at no extra monthly cost. I did eventually issue it due to state of my property – they were NOT maintaining it – they wouldn’t heat or ventilate in Winter – mould, condensation, much more wear & tear; purposely misusing/breaking Washer dryer, etc. etc. I had to bear the high consequent costs to replace/remedy and completely redecorate.
    I VERY MUCH DOUBT the Govn’t’s intended ‘proposals’ would ALLOW me to issue a (revised) Sec. 8 for this ground!!

  • I feel that a private landlord should be able to do whatever he/ she likes with his / her own property provided sufficient notice is given to the tenants ( at present 2 months but this could be extended to 3 ) . Yes there are some rogue landlords but there are many responsible ones as well ( like muself) and I feel that too much is focussed on the rights of the tenant and not the landlord.

  • 17 is a bit “interesting” as well.
    As I read this, if a tenant has problems which are related to benefit payment “failures” then rent arrears don’t count as grounds for eviction. It could be that the tenant has done something which causes benefits to be cut or stopped. Or it could be that there is a problem on the government’s side. But either way, it looks like the landlord is expected to pick up the tab for it.
    Now I know some landlords could cope with this, but I think that rather more of us would struggle. I’ve been unemployed since being made redundant nearly 2 years ago (I should be starting a new job soon) – and at the same time, my wife was not working (for a year) due to illness. Neither of us qualify for benefits so having the rent coming in on time is important – we still had the mortgage to pay every month, and the savings are dwindling.
    Given all the problems we hear about Universal Credit, it’s not hard to imagine any tenant on benefits having problems. So given that it will be harder and take longer (possibly never if it’s a benefits related problem) to get rid of a tenant, I’ll certainly be a lot more selective about who I’ll consider as a tenant – end result, those the government seems most concerned about will be significantly worse off and find that they are competing for fewer, and lower quality, homes to rent.

    Definitely a case of “be careful what you wish for” !

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