Legal update


order an immediate possession order on one of the discretionary grounds. A court would be more likely to take a compassionate approach and try to allow the care home resident an opportunity to


remedy the breach of which the care home operator has complained. There may well be extenuating medical circumstances. For example, a resident’s condition has deteriorated


Mandatory grounds for a possession order


l The landlord occupied the property as its only principal residence before the tenancy started or the landlord requires the property to live in as its only principal residence (no prior occupation is required for this alternative)


l The mortgagee requires possession of the property because of mortgage arrears on the property


l The tenancy is for a fixed term not exceeding eight months and was occupied as a holiday let during the 12 months before the tenancy started


l The tenancy is for a fixed term not exceeding 12 months and was let by an educational establishment during the 12 months before the tenancy started


l The property is held for the purpose of being available for occupation by a minister of religion as a dwelling house from which to perform his duties and is required for occupation by a minister of religion


l The landlord intends to demolish or reconstruct the whole of the property or carry out substantial works, which cannot be carried out with the tenant there


l The previous tenant has died and the tenancy has passed to a new tenant under a will, but the new tenant is not entitled to the tenancy under the law of succession. This applies to periodic tenancies and also to certain types of fixed-term tenancies in England


l Any of the following conditions are met, namely that the tenant or a person residing in or visiting the dwelling house:


- has been convicted of a serious offence committed wholly or partly in the locality of the dwelling house or against someone with a right to reside in or in the locality of the dwelling house or elsewhere against the landlord


- has breached a provision of an injunction under the antisocial behaviour legislation and the breach occurred in (a) the dwelling house or its locality or (b)


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elsewhere and the provision breached was intended to prevent conduct capable of causing nuisance or annoyance to someone with a right to reside in the dwelling house or


accommodation in this locality or to the landlord


- has been convicted of certain particular offences under the antisocial behaviour legislation - the dwelling house is or has been subject to a closure order under the antisocial behaviour legislation and access to the property has been prohibited for a continuous period of more than 48 hours - the tenant or a person residing in or visiting the dwelling house has been convicted of an offence under Section 80(4) or Section 82(8) of the Environmental Protection Act 1990 (EPA 1990) and the nuisance in question was noise constituting a statutory nuisance for the purposes of part 3 of the act


l Both of the following conditions are met:


- the Secretary of State has given a notice to the landlord identifying the tenant as a person or persons disqualified from occupying the dwelling house as a result of their immigration status


- the person or persons named in the notice are both of the following (a) the tenant or one or more of them or other adult occupiers of the dwelling house and (b) disqualified as a result of their immigration status from occupying the dwelling house under the tenancy


l Rent is unpaid at the time of service of the Section 8 notice and at the date of the hearing: a) if the rent is paid weekly or fortnightly, at least eight weeks’ rent is unpaid; b) if rent is payable monthly, at least two months’ rent is unpaid; c) if rent is paid quarterly at least one quarter’s rent is more than three months in arrears; d) if rent is paid yearly at least three months’ rent is more than three.


significantly and perhaps unexpectedly to a point where they are a danger to themselves or others or if not a danger, that their behaviour is so extreme and disturbing that their continued presence makes the normal operation of the home and the wellbeing of other residents untenable, such as in some cases of advanced dementia.


Again, in these situations, care home operators might find it difficult, if not impossible, to obtain a possession order on one of the mandatory grounds against a resident who does not wish to leave. Care home residents’ security in their accommodation is therefore likely to be strengthened if the planned repeal of Section 21 goes ahead.


Conclusion


The Government consultation on the abolition of Section 21 possession cases sought views on the impact of abolishing ASTs and whether the proposed reform should apply to both the private and social sectors as well how the existing grounds for possession in the Housing Act should be amended or extended, following the repeal of Section 21. The consultation process closed on 12 October 2019. It will be interesting to see what changes are actually made. TCHE


Tom Lumsden


Tom Lumsden is a partner at CooperBurnett LLP in Tunbridge Wells, specialising in commercial property. He has particular expertise in the sale and purchase of care homes, including acquiring land for care home development.


Disclaimer: this article is not intended as legal advice and must not be relied upon as such


www.thecarehomeenvironment.com • April 2020


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