It’s not uncommon for landlords to rent their home for a period of time to suit a change in circumstances with the intention of returning to the property in due course. But how can a landlord ensure that they have no problems in regaining possession of their property when that time arises? 

If the landlord wishes to return to live in a property that is currently rented under an Assured or Assured Shorthold Tenancy, the first stage is typically to serve a possession notice (i.e. Section 8 notice or Section 21 notice) on the tenant(s) to start the possession procedure should the tenant not comply.

When serving a Section 8 notice, the landlord must rely on grounds under Schedule 2 of the Housing Act 1988 setting out why they need to recover possession of the property. Where the landlord wants to return to the rented property, they may try to rely on Ground 1 under a Section 8 possession notice:

Ground 1

Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground, or the court is of the opinion that it is just and equitable to dispense with the requirement of notice and (in either case)— 

(a) at some time before the beginning of the tenancy, the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them occupied the dwelling-house as his only or principal home; or 

(b) the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them requires the dwelling-house as [his, his spouse’s or his civil partner's] only or principal home and neither the landlord (or, in the case of joint landlords, any one of them) nor any other person who, as landlord, derived title under the landlord who gave the notice mentioned above acquired the reversion on the tenancy for money or money’s worth.”

As set out above, Ground 1 is restricted and can only be used where the landlord has served prior notice on the tenant(s) before the start of the tenancy, or the court believes it just and equitable to dispense with this requirement. 

How can the landlord serve notice?

There is no prescribed notice to serve on the tenant(s) to be able to rely on Ground 1 later, if needed. In most cases, the Tenancy Agreement will include a simple paragraph confirming the landlord's right to rely on Ground 1 if they wish to return to the property.

What happens if no notice has been served?

As set out under Ground 1 under Schedule 2 of the Housing Act, the landlord can serve a Section 8 notice and later make a request to the court to dispense of the requirement to serve notice if not served before the start of the tenancy. However, it is a high bar for the landlord to prove it is just and equitable to dispense of this requirement, and there is a risk the court will dismiss this request and the Section 8 notice if relying on Ground 1 only. This will cause further delays and the landlord would incur additional costs.

If no notice has been served on the tenant, we would advise exploring other options to recover possession, such as a Section 21 notice. But, as the government has put forward proposals to abolish Section 21 notices, it is vital for landlords to protect their position by incorporating adequate terms under their Tenancy Agreements to ensure all grounds under Schedule 2 of the Housing Act can be relied on. This includes providing notice to the tenant before the start of the tenancy to be able to rely on Ground 1. 

In addition to abolishing the Section 21 notice, the government has also put forward proposals to introduce new grounds under the Section 8 notice, including:

• A new mandatory ground for repeated serious arrears that can be used “where a tenant has been in at least two months’ rent arrears three times within the previous three years, regardless of the arrears balance at hearing.”

• A new ground for landlords who wish to sell their property so that the landlord and their family can move into the rental property.

We still await further information regarding the changes to the relevant grounds, and no doubt the devil will be in the detail of the drafting.

Specialist Advice for Landlords from Woodstock Legal Services

We have substantial experience in all types matters relating to advising landlords on their legal obligations and the complexities involved. If you require assistance in drafting a Tenancy Agreement or wish to serve a possession notice to recover possession of your property, please contact Anna Hughes, head of our specialist Landlord & Tenant Team by emailing a.hughes@woodstocklegalservices.co.uk or by completing the form below.