The power of a Mandatory Possession Order

When seeking possession of a property, there are broadly two types of grounds for possession that a Registered Provider landlord can rely upon:

• Discretionary grounds; and 
• Mandatory grounds.

Where a discretionary ground for possession is relied upon, the Court has a 3 stage test to go through before being satisfied sufficiently to make a Possession Order. That test is as follows:

1. Is the ground relied upon made out and proven?
2. Is it reasonable in the circumstances of the case to make a Possession Order?
3. Should the Order be suspended on terms (an SPO) or should it be an outright Order?

Where a mandatory ground is relied upon, the only test the Court need look at is whether the ground is made out - the Judge is not required to look at reasonableness or whether there should be an SPO. If the ground is made out, and in the absence of any valid Defence, the Judge must grant an outright Possession Order. We can look at the assured rent grounds to give a practical example of how this process works.

In a claim were the landlord relies upon Ground 10 - some rent lawfully due and unpaid - the Court must first be satisfied that the Ground is made out i.e. that the rent account shows some arrears of rent which have not been paid. The Judge must then look at whether it is reasonable in the circumstances to make an Order. This is where the Judge's personal interpretation comes in as what classes as “reasonable” is very much a subjective test. What one Judge thinks is reasonable, another may not. 

If a rent account shows arrears of £5,000 for example, Ground 10 is clearly made out and if the tenant is unable to show any good reason for those arrears having accrued or any prospect of them being cleared, it is likely that the Judge will consider it reasonable to make a Possession Order and there is a strong argument that it should be an outright Possession Order requiring the tenant to give up possession at a set date.

Contrast this with arrears of just £50. Ground 10 is still made out - there is still some rent lawfully due and not paid. Is it reasonable to make a Possession Order on £50 worth of arrears however? It is highly unlikely that any Judge would award a Possession Order on that basis without other grounds for possession being made out and it is likely that the proceedings would be adjourned generally instead to allow the tenant the chance to clear those remaining arrears.

Let's contrast that with a mandatory claim for possession relying on Ground 8 - a mandatory ground for possession arises if, where rent is paid weekly or fortnightly, there is at least eight weeks' rent outstanding at both the date the Notice Seeking Possession is served and at the date of the first hearing. If rent is paid monthly, there must be at least two months' rent outstanding at those same key dates to rely on this ground.

At the first hearing the Judge will again need to be satisfied that the relevant level of arrears was indeed outstanding at the date the Notice Seeking Possession was served and at the date that they are hearing the case. If the ground is made out, and in the absence of a valid Defence, the Judge has no discretion but to make an outright Possession Order. The Court does not need to look at whether it is reasonable or not to make a Possession Order and has no power to grant a Suspended Possession Order either.

Ground 7A, the mandatory ASB ground, is another mandatory ground for possession regularly relied upon by Registered Providers but reliance upon a Section 21 Notice in relation to an assured shorthold tenancy is also a mandatory ground for possession as is the reliance on a Notice to Quit.

Where a mandatory ground for possession is made out, the only discretion left available to the Judge is to allow a maximum of 42 days from the date the Possession Order is made for the tenant to give up possession. The maximum 42 days should only be allowed where the need to give up possession earlier would cause the tenant “extreme hardship”. What classes as “extreme hardship” is again a subjective test and open to interpretation by the Judge making the Order.

What is sometimes forgotten is that, where a Possession Order is made on a mandatory ground, there is very little if no prospect of a tenant successfully applying to suspend any eviction listed either. This is because the same discretion to allow a maximum of 42 day to vacate a property under a Possession Order extends through to the warrant suspension stage as well.

A Judge can only suspend a Warrant and an eviction date is there is any of the 42 day period from the date of the Possession Order being made left over. So, if a Possession Order was made on 1 April, an eviction date was listed for 30 April (by some miracle with the current Court delays!) and the tenant made an application to suspend the eviction on 29 April, the only discretion left to the Judge would be to allow the eviction to be postponed until 11 June at the very latest, this being the 42nd day after the Possession Order was originally made.

Conversely, if the Possession Order was made on 30 April and the eviction is not listed until a date after 11 June, any application to suspend the Warrant should be immediately dismissed on the basis that the Judge has no discretion left to give any more time to the tenant to vacate the Property.

The above shows the power of a Possession Order made on a mandatory ground, not only in terms of what needs to be proven to the Judge when requesting the Possession Order is made but also, crucially, at warrant suspension stage.

Given the draconian nature of such mandatory Orders there are a number of considerations that a Registered Provider Landlord must consider before, during and after issue of proceedings. Has the pre-action protocol for possession claims been complied with? Have the tenant's individual vulnerabilities or disabilities been fully considered? Has the landlord followed their own policies and procedures when making the decision to issue possession proceedings?

Mandatory ground possession claims may not be suitable for all cases and a landlord may decide, on the specific circumstances of the matter they are dealing with, decide to rely on the alternative discretionary grounds available to allow the Court to examine reasonableness. Where used however, mandatory possession is a powerful tool to be used.

Should you or your organisation have any queries about mandatory grounds or require any assistance with proceedings, the Housing Management Team are here to help. Please contact me should you have any queries.