The form of notice that a landlord is required to give if he or she wants a tenant under an assured tenancy to move out is called a Notice seeking possession of a property let on an Assured Tenancy or an Assured Agricultural Occupancy. While other types of tenancies will give a landlord the right to get a tenant to leave by simply serving notice, the assured tenancy does not grant this right. Instead, the assured tenant must either decide to leave of his or her own accord, or the landlord must have a good reason to ask the tenant to leave. These reasons are called ‘Grounds’1. The landlord will need to serve the notice seeking possession on the basis of one of these Grounds and then obtain a court order that requires the tenant to leave for the same reason.
The tenancy agreement is a contract between the landlord and the tenant that governs the way the rental relationship must exist. The tenant has specific obligations that are listed in the tenancy agreement that he or she must carry out – such as the obligation to allow the landlord into the property, if the landlord has provided proper notice. If a tenant does not do what is required of him or her in the tenancy agreement, then the tenant will be in breach of the tenancy agreement (i.e. the tenant will have broken its terms). Where this happens in an assured tenancy situation, this gives the landlord a reason to apply for a court order to remove the tenant. If the landlord is intending to do this then the Notice seeking possession of a property let on an Assured Tenancy or an Assured Agricultural Occupancy will list Ground 12 as the reason for this.
The form of the Notice seeking possession of a property let on an Assured Tenancy or an Assured Agricultural Occupancy means that the landlord must explain why he or she is intending to obtain a court order; it is in this section of the form that the landlord will, most likely, list the breaches of the tenancy agreement that the landlord feels have provided good reason for serving the notice.
Ground 12 is a ‘discretionary’ Ground, which means that even if the landlord can demonstrate that the tenant is in breach of the tenancy agreement, the court still does not have to grant the landlord the court order that he or she needs to evict the tenant.
In this situation the court can take into account the circumstances, including what the breaches in the tenancy agreement are, how serious the breaches are, and how many there are.
From a tenant’s point of view, this means that there is the chance to argue against being asked to leave the property. This may be arguing that the breach of the tenancy does not exist; or that there is a breach - but it is still not reasonable for the tenant to be asked to leave.
It must be reasonable for the landlord to require the tenant to leave – so if there is only a minor breach of the tenancy agreement (for example, if there is an unfulfilled obligation to water the plants) then a landlord may not be seen as reasonable. On the other hand, if a tenant has breached an obligation to look after the landlord’s furniture by destroying it all, this is likely to be considered a breach where it is reasonable to grant a court order.
When Ground 12 cannot apply
Ground 12 should not be used by a landlord where the breach of the tenancy agreement in question is the breach of the obligation on the tenant to pay rent. Where there are rent arrears (unpaid rent), either Ground 8 or Ground 10 should be used.
A Notice seeking possession of a property let on an Assured Tenancy or an Assured Agricultural Occupancy which states that the possession is being sought because of Ground 12, must have been served at least two weeks before court proceedings are started. If the notice has not properly been served, then the proper procedure has not been followed and may have to be restarted.
If the tenancy agreement is a fixed term tenancy, then the court will not grant an order under Ground 12 unless the tenancy agreement states that this can be done.
1 They are listed in schedule 2 of the Housing Act 1988