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Out-Law Guide 6 min. read

Recovering possession of secure tenancies

This guide was last updated in August 2011.

A secure tenancy is the most common form of tenancy provided for residential purposes by local authorities. Secure tenants have strong rights, and can only be evicted in certain situations. A secure tenancy can only be terminated if one or more grounds set out in Schedule 2 of the Housing Act 1985 can be satisfied.

This guide considers the application of Ground 10A, which provides that a landlord can get possession of a secure tenancy if the property is in an area which has a redevelopment scheme and the property or part of it is affected by that scheme.

Ground 10A

This provides that a landlord can gain possession of a secure tenancy if:

  • the property is in an area which is the subject of a redevelopment scheme;
  • that redevelopment scheme has been approved by the Secretary of State;
  • the landlord intends to dispose of the property in accordance with the scheme within a reasonable period of time after obtaining possession; and
  • suitable alternative accommodation is available for the tenant.

Redevelopment scheme approved by the Secretary of State

Before making an application to the Secretary of State, the landlord must serve notice of its intention to do so on every secure tenant affected by the proposal. This notice must state:

  • the main features of the scheme;
  • the fact that the Secretary of State's approval would mean that the landlord could apply for possession of the tenant's property on Ground 10A;
  • that the tenant has at least 28 days to make representations to the landlord about the proposal.

The landlord must then consider any representations made by tenants within that period. There is no obligation on the landlord to do anything more than consider those representations. Only once any representations have been considered can the landlord make its application to the Secretary of State.

In deciding whether to approve the scheme, the Secretary of State is obliged to take various factors into account including:

  • the effect of the scheme on the extent and character of housing accommodation in the neighbourhood;
  • over what period of time it is proposed that the disposal and redevelopment will take place;
  • to what extent the scheme includes provision for housing provided under that scheme to be sold or let to existing tenants or persons nominated by the landlord; and
  • any representations made to him or to the landlord.

Intention to dispose of the property within a reasonable time

There is no reported case law dealing with what is a 'reasonable period of time' in which to be disposing of the property after taking possession. It should be noted, however, that there is no requirement that the redevelopment take place within a reasonable time. The Secretary of State will take this into account when deciding whether to approve the redevelopment scheme in the first place, as above.

Suitable alternative accommodation

Ultimately the onus is on the landlord to prove that the alternative accommodation it will provide is suitable. The Housing Act provides some guidance as to what is required.

The landlord will need to show that:

  • the tenancy offered for the new accommodation is just as secure as the tenant has in its current accommodation. This will be satisfied if the tenant is offered a new secure tenancy or assured tenancy under which the landlord contractually agrees not to recover possession on any of the grounds 1 to 5 set out in Schedule 2 of the Housing Act 1988. It will not be satisfied if the tenant is offered only an assured shorthold tenancy; and
  • that the alternative accommodation is reasonably suitable for the needs of the tenant and any family.

In deciding whether the alternative accommodation is reasonably suitable for the tenant and his or her family, the court will take account of:

  • the nature of the accommodation which the landlord generally allocates to similar tenants with similar family needs;
  • the distance of the alternative accommodation from the place of work or education of the tenant and any family members. This is subjective and will depend on the facts of each case. The alternative accommodation only needs to be 'reasonably suitable' as opposed to 'as good as' the current property;
  • the distance of the alternative accommodation from the home of any member of the tenant's family, if proximity is essential to that member's or the tenant's wellbeing;
  • the size of the accommodation and the means and needs of the tenant - again, this is subjective and will depend on the facts of the case. The new accommodation only has to be reasonably similar as regards size and rent. If, however, the rent in the alternative accommodation is significantly larger or smaller then this may present some difficulties;
  • other terms on which alternative accommodation is available compared to the terms of the secure tenancy; and
  • if furniture, including white goods, was provided by the landlord for use under the secure tenancy, whether furniture is to be provided for use in the alternative accommodation and, if so, the nature of the furniture to be provided.

Procedure for recovering possession

In order to recover possession under Ground 10A, the landlord will first have to consult with tenants and apply to the Secretary of State for approval of the redevelopment scheme, as above.

Once approval has been granted – even if that approval is subject to conditions – and if the tenant is not prepared to leave voluntarily, a Notice of Possession needs to be served which specifies:

  • that the landlord is relying on Ground 10A; and
  • a date before which possession proceedings cannot start. This date will differ depending on the length of the tenancy. If the tenancy is a weekly periodic tenancy, which is most likely, then a minimum of 28 days notice will be required unless the tenancy requires the landlord to provide more notice than this.

The alternative accommodation does not need to have been offered before the notice is served, but it would be a good idea to do so. A comprehensive re-housing strategy should be adopted, under which tenants are encouraged to move out voluntarily followed by formal offers of alternative accommodation being made to tenants before the notice is served.

After the expiry of the notice period, possession proceedings can begin. It is critical that the alternative accommodation is available at the date of the hearing.

A possession hearing is usually granted between six to eight weeks after the date of issuing proceedings. This hearing is usually listed for no more than 10 minutes. Given the nature of the grounds being relied on, this is unlikely to be sufficient. If the proceedings are contested, which would be likely if the tenant has not moved out voluntarily, the first hearing will be treated as a directions hearing and the court will order directions progressing the matter to a final hearing. Contested proceedings could take at least 12 months to reach a final hearing from the date that the proceedings are issued – possibly longer if the tenant appeals. It may be possible to accelerate the progression of these proceedings. There are various criteria that the landlord would need to establish in order to do so, and this is often difficult.

At the final hearing, the court will consider whether or not the criteria for Ground 10A have been satisfied. If the court is satisfied that the Ground 10A criteria have been met and suitable accommodation is available for the tenant it must make an order for possession. The court does not need to consider whether it is reasonable to make an order for possession.

Usually the date the order requires the tenant to leave the property is 28 days after the date of the hearing. However, the judge has discretion to reduce or extend this time period.

If the tenant does not leave by the date given in the order for possession, a warrant of possession will need to be issued. If a County Court bailiff is used to carry out the eviction the process from the issue of the warrant and the eviction itself could take between four and eight weeks depending on the bailiff's availability. If necessary, this process can be speeded up potentially to between one and two weeks by using a High Court Enforcement Officer.

If proceedings are contested and an application to suspend a warrant of possession is made by the tenant, the process could take 12 to 18 months from the issue of the Notice of Possession to enforcing the order for possession. If the requisite criteria are present, it should be possible to speed this up with the result that, theoretically, the process could be shortened to between six and nine months. If either party appeals the process will take considerably longer.

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