Renting Homes: The Final Report - Law Commission

The possession notice
5.6 The court cannot normally entertain a claim for possession unless the landlord
has first given a possession notice. 5 The court has power to dispense with the
notice requirement if it thinks this would be reasonable. 6 This replaces and
widens the present “just and equitable” test, which is not currently applicable in
every case. 7
Deemed possession claims
5.7 There is no notice requirement in cases described as “deemed possession
claims”. 8 These arise where the court has granted the landlord an injunction
against the contract-holder for breach of the prohibited conduct term 9 and the
landlord now claims there has been a breach of the injunction. 10
5.8 Should the landlord decide to take proceedings for breach of the injunction, they
are entitled to include in those proceedings a claim for possession. 11 If the
landlord does this, the proceedings will be treated as a claim for possession in
which the landlord relies on the breach of contract ground. 12 However, in these
cases, the landlord cannot use the injunction proceedings to seek possession on
a quite different factual basis. The landlord may only rely on facts that were relied
on when the initial injunction was sought, and the facts alleged to constitute the
breach of the injunction. 13
Possession orders
5.9 We have already noted that the number of grounds for possession set out in the
Bill is much smaller than the long lists of grounds for possession that are
currently set out in the Housing Acts 1985 and 1988 (as amended). 14 In the
recommended scheme there are just six, which cover all occupation contracts:
(1) breach of contract; 15
(2) the estate management grounds; 16
5 Cl 190(1). Possession notices are discussed above, at para 4.49.
6 Cl 190(2).
7 We think that a test of reasonableness is simpler and achieves much the same outcome.
The principal exception to the “just and equitable” rule is that currently in cases brought
under ground 8 – the mandatory ground available to landlords under assured tenancies,
where they are seeking possession on the basis of more than 2 months’ rent arrears –
courts cannot dispense with the notice requirement.
8 Cls 190(3)(b) and 191.
9 Discussed below in Part 9.
10 Cl 191(1).
11 Cl 191(2).
12 Cl 191(3). The breach of contract ground is discussed at para 4.47.
13 Cl 191(4).
14 See above, at para 4.45(1).
15 Cl 183.
16 Cl 185.
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