Your questions answered: Absolute ground, not in the tenancy agreement, can we still use it?

Your questions answered: Absolute ground, not in the tenancy agreement, can we still use it?

Published:

Author: Bukola Aremu

We want to obtain a closure order and then use the new absolute ground for possession under the ASBCPA 2014.

Does the tenancy agreement have to state the new ground before we can do this?

The new absolute grounds for possession are contained in Part 5 of the Anti-social Behaviour, Crime and Policing Act 2014 - recovery of possession of dwelling-houses: anti-social behaviour grounds.

The council can rely on section 84A of the Housing Act 1985 - absolute ground for possession for anti-social behaviour - without it being referred to in the tenancy agreement unless it is referred to as a ground which the council will not rely upon to take possession of a dwelling-house.

If the tenancy agreement prohibits the use of certain statutory grounds to recover possession - which is unlikely to apply to the 2014 Act due to its infancy - they cannot be used. For example, some tenancies state the grounds under statute that the landlord will rely on and also state those that they will not. If the tenancy agreement is silent, a landlord is free to use any relevant legislation in support of its action to recover possession.

Any breach of an express term contained in the tenancy or an implied term under statute can be relied upon for the purposes of recovering possession.

Do not get caught out by the notice

Before starting possession proceedings, you must serve notice under section 83 of HA 1985. The 2014 Act states that when relying on the new absolute ground under section 84A, the landlord must:

  • state that the court is being asked to make an order under section 84A of HA 1985
  • set out the reasons for applying for the order including the conditions in section 84A of HA 1985
  • inform the tenant of any right to appeal

If another ground for possession is to be relied upon under Schedule 2 of the 2014 Act in addition to section 84A of HA 1985, the notice must also:

  • specify the ground
  • give particulars of the ground

Summary

The tenancy agreement is not an obstacle preventing action for recovery of possession when the statutory provision is silent in the agreement. However, the notice seeking possession must be loud in its compliance with section 83ZA HA 1985 in order for the proceedings to progress.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.