Ground 8 – A Mandatory Ground for Possession: Can the claim ever be defended?
News article published on: 21st August 2018
Section 8 Notices and Possession claims relying on Ground 8 are used by both the private sector and Registered Social Landlords to regain possession of a property in circumstances when a tenant falls into rent arrears.
A Ground 8 claim for possession is a mandatory ground for possession. So provided that the landlord has carried out their obligations correctly and can prove that the tenant owes more than eight weeks’ or 2 months’ rent when the notice was served AND at the time of the hearing then the Court will automatically make an outright possession order, in most circumstances eviction follows swiftly.
Given the serious risk of losing a tenants home it is advisable to seek urgent housing advice as soon as possible i.e. on receipt of the section 8 Notice and or upon receipt of the Claim having been issued at Court.
The good news is that in certain circumstances based on the individual facts of a case it may be possible to defend the claim. However, these defences are usually technical and it is unlikely that a tenant or a lay person will have the knowledge to know how to go about preventing an outright possession order being made when it appears that an outright order is inevitable.
A legal advisor can discuss a number of issues with the tenant to consider whether the claim can be defeated including considering issues such as, is there any way that the arrears can be reduced before the Court hearing, are there any landlord failures i.e. procedural consideration of the notice and Court papers, or breach of covenant towards the tenant i.e. in relation to disrepair or breach of quiet enjoyment. If the landlord holds a rent deposit then it is important to check that the landlord complied with their statutory requirements, if not this can allow a counterclaim to the claim and in cases of failure to properly comply with rent deposits it is possible for a Judge to exercise their discretion to award damages of anything between 1 and 3 times the deposit paid by the tenant. If such counterclaims are successful then the damages awarded can be off set against the rent arrears and this may reduce the rent arrears to below the 8 weeks or two months’ requirement before an outright order must be made and thus defeat the claim. In cases of Registered Social Landlords, they hold additional obligations and consideration should be given as to whether it has acted in accordance with their public law duties and if not, whether a counterclaim can be brought against it.
The most important information a tenant needs to know is that if the rent arrears can be reduced to below either 8 weeks or two months’ of rent at the time of the hearing the claim can be defeated and to seek immediate legal advice.
At Osbornes Law we offer advice in relation to all aspects of Notices and possession claims and provided the tenant is eligible, public funding is available from the Legal Aid Agency. To speak to a housing lawyer contact us on 020 7485 8811 or fill in our online form.