Landlord wants to move back into the property: will this become an alternative to a no-fault notice?

This article will provide practical guidance for Advisers that outlines how ground 1 (where the landlord or their spouse or civil partner intends to occupy the property) can be used by a landlord in England and Wales.

This article will cover both England and Wales.

Housing law has become increasingly devolved and with the implementation of the Renting Homes (Wales) Act 2016, Wales has a completely new process for obtaining possession. This article will first explore the position in England and then in Wales.

Advisers in England

If the landlord has let out a property on an assured shorthold tenancy basis and wants to move back into the property (or their spouse/civil partner wants to move in), they can rely on a section 8 notice on ground 1, which is mandatory ground for possession. As long as the landlord has followed the correct process and can prove the ground at court, the court will have to make a possession order.

We are seeing cases via consultancy where it seems landlords use ground 1 where a section 21 cannot be used or following an unsuccessful attempt to increase a tenant’s rent. Section 8 notice does not have any prescribed requirements prior to service of the notice (for example gas safety certificate, EPC etc) which means those landlords that cannot rely on a section 21 notice for these reasons may use ground 1 as an alternative method of obtaining possession.

The Renters Reform Bill proposes to abolish section 21 notices which will mean landlords will need to rely on a ground to obtain possession. If there has been no breach on the tenant’s part and the landlord just wants their property back, ground 1 may be more frequently used or misused.

Currently, ground 1 is used where the owner occupier or his/her spouse or civil partner intends to return and occupy the dwelling as their only or principal home.

A court cannot make an order for possession on this ground during the fixed term.

Ground 1 cannot be used by a new landlord that bought the property during the tenancy.

Grounds 1–5 of the Housing Act 1988 are what we refer to as prior notice grounds. This means that at the start of the tenancy, the landlord must have served notice to state that at some point during the tenancy, they may wish to rely on these grounds.

Ground 1 however, is a ground where the courts can waive the prior notice requirement if it is “just and equitable to do so.”

Schedule 2 of Housing Act 1988 states:

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 [F1his, 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.

We will explore this with two case studies, one where the landlord has provided prior notice and one where they have not.

Case study 1 — Matteo

“Matteo lives at 121 Solarna Gardens, which is a two bedroom flat. He has lived there for 3 years. The landlord tried to increase the rent but did not follow the correct process. He has been harassing Matteo for some months and has finally sent him a text message saying he is fed up with the situation and it is no longer financially viable for him to rent the property out and he needs to move back in.

He served a Section 8 notice on a Form 3 prescribed form. It stipulates possession is required on ground 1 as defined in Schedule 2 of the Housing Act 1988 and gives two months notice.

The landlord states that the tenancy agreement contains a clause at para 20 that states ’the landlord may seek possession on grounds 1–5 of Schedule 2 of the Housing Act 1988.’

The landlord explains in the section 8 notice that he lived in the property for 5 years and then bought a property with his partner and decided to rent 121 Solarna Gardens.

The landlord and his partner have gone through a relationship breakdown and now the marital home has been sold. The landlord is currently residing with his mother temporarily and needs to move back into 121 Solarna Gardens.

Matteo comes to you to seek advice on what to do next.”

Step 1 — check the prior prescribed requirements for the ground

If we consider the wording in schedule 2, there are three elements to Matteo’s landlord being able to rely on ground 1.

1. Prior written notice must be given at the start of the tenancy
2. The landlord or in the case of joint landlords, at least one of them at some point before the tenancy commenced occupied the dwelling as their only or principal home and
3. The landlord requires the dwelling for their only and principal occupation

Matteo’s landlord included a written clause in the tenancy agreement that he may move back in at some point and further, the property was his main and principal home for 5 years prior to renting the property out to Matteo.

Advisers may come across situations where there is some confusion on prior notice, such as:-

• if written prior notice was clear or was an ambiguous clause in the tenancy agreement)
• Verbal notice given but not written notice

The Court of Appeal case of Fernandes v Parvardin (1982) 5 HLR 3 considered the issue of prior verbal notice as opposed to written notice. The Court’s position was “is it clear from any verbal or written notice prior to the tenancy commencing that the landlord may want to return and move into the property.” This will depend on what has been said, what evidence there is and the facts of each case.

Step 2 — check the notice for the usual validity requirements

The notice must be on a prescribed form 3 and has a notice period of two months.

All of the usual notice requirements would apply, you can find more information on Advisernet here:- 11.6.1.9 If you get a ‘section 8’ eviction notice — AdviserNet (citizensadvice.org.uk)

Matteo’s landlord will be granted possession as long as the notice complies with the notice validity requirements.

Case study 2 — Kenneth

“Kenneth lives at 29 Neptune Court. He moved in 2.5 years ago and had a verbal agreement with the landlord and pays £500 per month and lives alone.

His landlord has previously served a section 21 notice but as she did not comply with any of the prescribed requirements — no gas safety certificate, no how to rent booklet, no EPC etc, the section 21 was thrown out at court.

His landlord has now called him to say that she is struggling financially and needs to move back into the property. She has since served a section 8 notice on ground 1 using the prescribed Form 3 giving two months notice.

She has explained in the notice that she lived in the property for 20 years. She moved abroad to Benidorm 3 years ago and rented the property out. She has since returned to the UK a year ago and has been renting in London. She has lost her job and is struggling financially. Her health has deteriorated and it is clear that she will not be able to return to work. She wants to move back into the property.”

Kenneth has a periodic assured shorthold tenancy, a written tenancy agreement is not a requirement to establish a tenancy.

Step 1 — check the prior prescribed requirements for the ground

If we consider the wording in schedule 2, there are three elements to Kenneth’s landlord being able to rely on ground 1.

1. Prior written notice must be given at the start of the tenancy
2. The landlord or in the case of joint landlords at some point before the tenancy commenced occupied he dwelling as their only or principal home
3. The landlord requires the dwelling for their only and principal occupation

Ground 1 is a ground where the courts can waive the prior notice requirement if it is “just and equitable to do so.”

Kenneth can consider defending the section 8 notice on the basis that no prior notice was given by his landlord. The success of his defence will depend on the facts of the case and how the courts apply the “just and equitable” criteria to dispense with the requirement to service prior notice.

There is an interesting summary note on how the court has dealt with the question of “just and equitable” in case law. Read notes on the just and equitable test on by Mark Polawski (PDF 60.2KB).

Some factors to consider from case law are:-

• Was there ever oral notice that the landlord may want to the property back
• The availability of alternative accommodation for both the landlord and the tenant
• The financial and personal circumstances of the landlord
• The prejudice to the tenant

Step 2 — check the notice for the usual validity requirements

The notice must be on a prescribed form 3 and has a notice period of two months.

All of the usual other notice requirements would apply, you can find more information on Advisernet here:- 11.6.1.9 If you get a ‘section 8’ eviction notice — AdviserNet (citizensadvice.org.uk)

Step 3 — how to raise a defence

Kenneth can either run a defence himself, seek private legal representation or will need to be referred to a provider with a housing Legal Aid contract.

Kenneth may be able to get “on the day” assistance at court. He can find his nearest Housing Loss Prevention Advice Service provider here, which will be able to provide him with some initial advice and represent him at the hearing.

He is best advised to go to the advice provider as soon as he has the claim form and they can provide advice in relation to filing a defence.

Kenneth can go to them now, as the notice has already been served. HLPAS assists clients at risk of homelessness irrespective of their financial means.

Kenneth can also find his nearest housing legal aid provider here, if HLPAS is not available in his area. They would assist in a similar way to the above however he would need to be financially eligible for legal aid.

Other matters

Advisers may come across a client who has a landlord or joint landlord that has never been resident in the property but the landlord requires the property for themselves, or for their spouse or civil partner, as their only or principal home.

Advisers would need to apply the advice above in the same way but must take care to clarify who the landlord wishes to move into the property if they themselves are not moving in. The Act does not provide for the landlord to use it for any other family members bar their spouse or civil partner.

Advisers should note that a successful challenge to a ground 1 notice might be followed up by the landlord using a s21 (no fault) notice. This is a simpler process for landlords. Clients outside of their fixed term will be especially vulnerable. The client will need separate advice on whether there are any defences to the section 21 notice and will need to be mindful of court costs if they do not qualify for Legal Aid funding.

Adviser checklist for ground 1 notices

1. Does the client have a fixed term or periodic assured shorthold tenancy? If they have a fixed term tenancy, the landlord can serve notice but the court cannot grant a possession order to expire before the end of the fixed term
2. Check the tenancy agreement for any clause about possession/notices and ask the client if any notice or verbal/written agreement was made at the start of the tenancy that the landlord, joint landlord or their spouse or civil partner may wish to move back into the property
3. If no prior notice, what explanation has the landlord given that the court may consider is sufficient for it to be “just and equitable” to dispense with the notice
4. Who is asking to move back in?
5. Is it the landlord/joint landlord? If yes, it must be the original landlord, not a new landlord that bought the property during the tenancy
6. If not the landlord/joint landlord, is it their spouse or civil partner or someone else? The Act only provides for their spouse or civil partner
7. Check the notice — is it on the correct prescribed form, does it give the correct amount of notice etc
8. If there are any concerns, refer the client to a HLPAS or Housing legal aid provider to assist with raising a defence

Future reform in England

This article is written at the time when the Renters Reform Bill implementation is on the horizon but still subject to parliamentary scrutiny and not guaranteed. The Bill proposes to abolish section 21 no-fault notices, meaning a landlord will only be able to rely on a ground for possession. There is a risk that where no fault on part of the tenant can be relied upon, a landlord may use the amended ground 1 or new ground 1A to seek possession.

Schedule 1 of the Renters Reform Bill seeks to amend Ground 1 of Schedule 2 of the Housing Act 1988 as follows:-

“At the relevant date, the current tenancy has existed for at least 6 months and the landlord who is seeking possession requires the dwelling-house as the only or principal home of any of the following —

(a) the landlord;

(b) the landlord’s spouse or civil partner or a person with whom the landlord lives as if they were married or in a civil partnership;

(c) the landlord’s —

(i) parent;

(ii) grandparent;

(iii) sibling;

(iv) child;

(v) grandchild;

(d) a child or grandchild of a person mentioned in paragraph

(b)A relationship of the half-blood is to be treated as a relationship of 25 the whole blood. In the case of joint landlords seeking possession, references to “the landlord” in this ground are to be read as references to at least one of those joint landlords.”

This expands ground 1 to family members of the landlord that extend beyond a civil partner or spouse. It cannot be used within the first six months of the tenancy however, the prior notice requirement has been removed.

Currently there are no repercussions for a landlord that obtains possession on ground 1 and then fails to move in/move their spouse or civil partner once the tenant moves out. Renter’s Reform Bill has provided for Local Authority enforcement in instances where the property is marketed or re-let within a 3 month period.

Renters Reform Bill also introduced a new ground 1A which can be used where the landlord intends to sell the property. It cannot be used within the first six months unless the property is being sold to an authority that has served a compulsory purchase order (CPO). There is no prior notice requirement for this ground and the same restrictions on re-letting within a 3 month period apply.

The Government will issue guidance once the Bill is implemented about what evidence should be provided to the courts, for example, instruction of a letting agent to sell the property if using ground 1A.

There may be a risk with both grounds 1 and 1A that a landlord may just serve notice to obtain possession of the property with no intention to move in/ move a family member in or sell the property. The enforcement of this has been left to Local Authorities, which will likely be already overstretched, under-resourced Private Sector teams. Also, the onus will be on the tenant complaining to the Local Authority, a tenant that does so will have already moved out and any enforcement action does not provide for the landlord to let the tenant move back into the property. The likely consequence will be a financial penalty and/or a criminal conviction.

There are landlords who will urgently need to move back into their property due to financial issues or may need to urgently sell their property therefore the Bill intends to protect their position once section 21 notices have been abolished.

The Bill does not propose amending the section 8 notice requirements to include compliance with the full prescribed requirements prior to service of the notice (for example gas safety certificate, EPC etc) however landlords will need to comply with the deposit protection rules before the making of a possession order. This does mean if a landlord could not rely on a section 21 notice due to failing to obtain a gas safety certificate, they can rely on a section 8 notice more easily.

You can read in more detail about the amendments and progress of the Bill here:- Renters (Reform) Bill 2023–24: Progress of the Bill — House of Commons Library (parliament.uk)

Advisers in Wales

The Renting Homes (Wales) Act 2016 removed specific detailed grounds for possession and broadly allows possession on:-

• Breach of contract grounds
• Estate management grounds
• No fault basis
• Serious rent arrears

A landlord wanting to move back into the property does not fall into breach of contract or estate management grounds.

A landlord in Wales wanting to move back into their property would therefore need to rely on a no fault notice, that is a 6 month notice. You can read here for more detailed notice advice: 11.21.4.10 If you get a ‘no fault’ eviction notice — AdviserNet (citizensadvice.org.uk)

A landlord may try to use a breach of contract ground by including a supplementary term in the written occupation contract that says “if the landlord needs the property for themselves or their family member, they may end the contract.” A term like this however would arguably be an unfair contract term. Breach of contract grounds are discretionary and therefore it would ultimately be for a court to decide.

Summary

We are already seeing consultancy cases where it appears ground 1 is being used where tenants are not agreeing to rent increases, complaining about disrepair and/or where section 21 cannot be used due to prescribed information compliance issues.

Given that ground 1 is a mandatory ground, advisers need to be alert and check for prior notice as well as the actual notice itself.

There may be concerns that if and when the abolition of section 21 notices comes in, the use of the amended ground 1 and new ground 1A will increase. This poses the overall question of whether abolition of no-fault notices may just provide landlords with an easier alternative to obtaining possession where they do not need to comply with the prescribed information requirements they needed to before.

On balance there may be instances where there are genuine cases of where a landlord needs the property or is forced to sell the property.

The disparity between the positions between England and Wales will likely continue until such time that the Welsh Government makes a decision about banning no fault evictions in Wales. The likelihood will be that they will look to see how successfully (or unsuccessfully) this is implemented in England.

Mariam Raza works as a Housing expert in the Expert Advice team at Citizens Advice.

The information in this article is correct as of the date of publication.

Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.