Under discretionary grounds for possession, judges must decide two things – whether the landlord has proven the ground that applies and whether it is reasonable to order possession.
Unlike mandatory grounds, proving the breach is not enough – judges weigh the seriousness of the conduct, the tenant’s circumstances, the landlord’s evidence and whether eviction is proportionate.
Does the Renters’ Rights Act 2025 Change How Discretionary Grounds Work?
Yes, but the core framework remains the same.
The Renters’ Rights Act 2025 reformed the discretionary grounds for private assured tenancies. The grounds set out in this post apply to Section 8 notices served on or after 1st May 2026.
Different grounds apply to Section 8 notices served before 1st May 2026 and to social housing tenancies, including housing association tenancies. This post covers private assured tenancies only.
What is a Discretionary Ground for Possession?
A discretionary ground is one where the court has the power – but not the obligation – to grant possession.
The grounds are set out in Schedule 2 of the Housing Act 1988, as amended by Schedule 1 of the Renters’ Rights Act 2025.
They cover a range of tenant conduct issues: rent arrears, property damage, anti-social behaviour, tenancy breaches and others.
This is the key distinction from mandatory grounds.
Under a mandatory ground, the court must grant possession once the landlord proves the ground applies. Under a discretionary ground, the landlord must prove the ground applies and persuade the court that possession is reasonable.
What Does ‘Reasonable to Order Possession’ Actually Mean?
Reasonableness is not defined by statute – it is a judgment the court makes on the facts of each case and is in the hands of the judge.
Official guidance confirms the court considers the interests of the landlord, the tenant and the public.
Where possession relates to a breach of tenancy, the relevant factors include:
- How serious the breach was and its effect on others
- If the tenant had an opportunity to remedy the breach
- The effect of eviction on the tenant and their household
- If there were any more breaches in the run up to the trial
- The reason for the tenant’s breach of their tenancy agreement
There is no fixed formula – the judge weighs all of these factors together.
Can a Judge Refuse to Make a Possession Order Entirely?
Yes, this is one of the most important features of discretionary grounds.
Even where a landlord proves a ground applies, the court can refuse possession if it concludes eviction is not reasonable. If this happens, the claim is dismissed and the landlord recovers nothing from the hearing and may face a costs order.
This outcome is most common where the breach was minor, the tenant corrected the problem before the hearing, the landlord’s evidence was weak or eviction appears disproportionate given the tenant’s circumstances.
A dismissed claim does not prevent the landlord from bringing fresh proceedings later – it resets the timeline entirely.
What Do Judges Consider for Each Discretionary Ground?
Each ground carries its own judicial considerations.
The table below gives a ground-by-ground overview:
Discretionary Grounds at a Glance
| Ground | Summary | Key Judicial Considerations | Notice Period |
| Ground 9 | Suitable alternative accommodation | Suitability for tenant’s needs: affordability, size, location, disability access, schooling, commute | 4 months |
| Ground 10 | Any rent arrears | Amount owed, payment history, temporary hardship, attempts to repay, landlord conduct | 4 weeks |
| Ground 11 | Persistent late payment | Pattern of repeated delays even if arrears are cleared before court | 4 weeks |
| Ground 12 | Breach of tenancy terms | Seriousness of breach, whether breach continues, tenant behaviour, proportionality | 4 weeks |
| Ground 13 | Deterioration of property | Whether damage caused by tenant neglect or ordinary wear and tear | 4 weeks |
| Ground 14 | Anti-social behaviour | Severity, frequency, impact on neighbours/community, supporting evidence | Immediate/ No minimum notice |
| Ground 14A | Domestic abuse (social landlords only) | Protection of victims, risk of return, housing circumstances | 2 weeks |
| Ground 14ZA | Riot-related conviction | Nature of offence and connection to tenancy/community impact | 2 weeks |
| Ground 15 | Deterioration of furniture | Extent of damage and whether intentional or negligent | 4 weeks |
| Ground 17 | False statement | Whether tenant knowingly provided false information to obtain tenancy | 2 weeks |
| Ground 18 | Supported accommodation non-cooperation | Whether support was genuinely offered and refusal was unreasonable | 4 weeks |
Source: https://www.legislation.gov.uk/ukpga/2025/26/schedule/2
Ground 9: Suitable Alternative Accommodation
The court has the power to grant possession if the landlord can prove that suitable alternative accommodation will be available for the tenant when the notice expires.
However, the court must be satisfied that the alternative property is genuinely suitable for both the tenant and their family – simply proving that a vacant property exists is not enough.
Furthermore, because this is a discretionary ground, a judge can still refuse the eviction if they decide it is not reasonable to force the tenant to move.
When assessing suitability, judges examine the material circumstances of the household, including:
- Financial and physical needs: the property’s affordability, physical size and any required disability or mobility adaptations.
- Practical logistics: the location of the property and its direct impact on children’s schooling and the tenant’s work commutes.
- Overcrowding laws: accommodation is strictly unsuitable if it would result in statutory overcrowding under Part X of the Housing Act 1985.
Finally, the alternative property must offer the tenant a reasonably equivalent security of tenure. Under the Renters’ Rights Act 2025, this means moving the tenant into another rolling periodic assured tenancy with the same statutory protections against unfair eviction.
Landlords must give tenants a minimum of four months’ notice when serving a Section 8 notice under Ground 9.
Ground 10: Rent Arrears
Ground 10 applies where some rent was lawfully due from the tenant at both the date of notice and the date proceedings were issued – there’s no minimum arrears threshold.
Judges consider the tenant’s payment record, the cause of the arrears, whether the tenant has taken steps to reduce the debt and whether the landlord’s own conduct contributed to the situation.
A tenant who has reduced arrears since the claim was issued – or who has maintained a repayment arrangement – can argue that possession is not reasonable. The court may adjourn the case on terms rather than grant an order.
Ground 11: Persistent Delay in Paying Rent
Ground 11 focuses on payment behaviour rather than the current balance. The court can order possession even where there are no arrears at the hearing date.
A clear chronological record showing a long-term pattern of late payment is more persuasive than isolated incidents. Judges look for evidence of repeated delays, broken payment promises and prior warning notices.
This ground is commonly combined with Ground 10 and mandatory Ground 8 – see the section on combining grounds below.
Ground 12: Breach of Tenancy
Ground 12 covers breaches of express terms written into the tenancy agreement. Common examples include unauthorised occupants, keeping pets without permission, smoking inside the property, and refusing access.
Judges generally expect the landlord to show that the tenant knew the rules, the breach occurred and reasonable warnings were given. A tenant who has ceased the breach before the hearing can argue that possession is not reasonable.
Ground 13: Deterioration of the Property
Ground 13 applies where the tenant, a member of their household or a lodger has caused the condition of the property or common parts to deteriorate.
The key distinction judges draw is between genuine neglect or damage and ordinary wear and tear. Dated photographic evidence and a professional assessment of the damage both carry significant weight.
Where the deterioration was caused by a lodger or subtenant, the landlord must show the tenant failed to take reasonable steps to remove them.
It’s also worth mentioning that a tenant with a serious hoarding disorder or other mental health condition may have a disability discrimination defence — this is a specific risk landlords should be aware of before proceeding on this ground.
Ground 14: Anti-Social Behaviour
Ground 14 is the only discretionary ground where the landlord can issue court proceedings immediately after serving notice.
Judges consider the seriousness, frequency and severity of the behaviour, its effect on other residents, whether the tenant has shown remorse, whether the behaviour is likely to continue and whether the property’s condition – for example, poor sound insulation – may be a contributing factor.
Multiple independent witnesses, documented patterns and official reports from police or the local authority carry the most weight. Possession orders on Ground 14 are only suspended in exceptional cases where the behaviour is serious and persistent.
Ground 14A: Domestic Abuse
Ground 14A is a specialised discretionary ground available exclusively to registered providers of social housing and charitable housing trusts – it cannot be used by private landlords.
It applies when one member of a couple has permanently left the dwelling-house because of domestic violence or threats of violence directed at them (or their family members) by the remaining partner, and the fleeing partner is unlikely to return.
Under the Housing Act 1988, a ‘couple’ includes individuals who are married, in a civil partnership, or cohabiting as partners.
When deciding whether it is reasonable to order possession, judges prioritise victim protection and heavily evaluate the ongoing risk of the perpetrator’s return.
To meet the high evidentiary threshold, social landlords must present a robust paper trail, evidence from the police, Multi-Agency Risk Assessment Conference (MARAC) document trails and official social worker or safeguarding records carry the most significant weight.
Landlords must serve a minimum two-week notice period under Ground 14A.
Crucially, under Section 8A of the Housing Act 1988, the landlord is legally mandated to take all reasonable steps to serve a duplicate copy of the Section 8 notice directly onto the partner who has fled the property, ensuring they are kept informed of the proceedings.
Ground 14ZA: Riot-Related Offence
Ground 14ZA allows a landlord to seek possession where the tenant, or an adult aged 18 or over residing in the property, has been convicted of an indictable offence committed during, and at the scene of, a riot anywhere in the UK.
For the purposes of this ground, a ‘riot’ is strictly defined under Section 1 of the Public Order Act 1986 as a disturbance involving 12 or more people using or threatening unlawful violence for a common purpose.
Crucially, the offence does not need to have occurred in the locality of the property to trigger this ground. Furthermore, while the offence must be indictable in nature, convictions secured in either the Magistrates’ Court or the Crown Court satisfy the statutory criteria.
While the criminal conviction serves as the baseline evidence, Ground 14ZA remains discretionary.
Solicitors should advise landlords that judges will still apply a strict reasonableness test – weighing the severity of the specific criminal conduct and its wider community impact against the tenant’s personal circumstances and the rights of any innocent household members.
Ground 15: Deterioration of Furniture
Ground 15 applies in furnished tenancies only. It covers damage to furniture provided with the tenancy by the tenant or anyone living in the property.
As with Ground 13, judges distinguish intentional or negligent damage from ordinary use. An inventory report and before-and-after photographs are the most persuasive evidence.
Where damage was caused by a lodger or subtenant, the landlord must show the tenant failed to take reasonable steps to remove them.
Ground 17: Tenancy Obtained by False Statement
Ground 17 applies where the landlord granted the tenancy as a result of a false statement by the tenant – whether knowingly false or made recklessly.
Judges look for clear proof that the statement was false, the tenant knew or should have known it was false and the landlord relied on it when granting the tenancy. A failure to disclose material information can satisfy this ground where the tenant was under an obligation to do so.
Ground 17 can only be used against the original tenant. It cannot be used against a person who inherited the tenancy through assignment or succession.
Ground 18: Supported Accommodation
Ground 18 applies where the tenancy was originally granted as supported accommodation and the tenant has unreasonably refused to co-operate with the support services provided.
Judges look for evidence that support opportunities were genuinely offered before proceedings began. Support plans, meeting attendance records, warning letters and records of refused engagement all strengthen the claim. The proportionality of eviction is particularly important where the tenant is vulnerable.
What is the Difference Between an Outright and a Suspended Possession Order?
Under Section 9 of the Housing Act 1988, which continues to govern discretionary possession claims under the Renters’ Rights Act 2025 framework, courts have wide powers.
The court may adjourn proceedings, stay or suspend execution of the order, or postpone the date of possession. It can also impose conditions.
An outright possession order requires the tenant to vacate by a fixed date. A suspended possession order allows the tenant to remain – provided they comply with conditions set by the court.
https://strikescs.com/enforcement-services/possession-orders/
Outright v Suspended Possession Orders
| Outright Possession Order | Suspended Possession Order | |
| What it means | Tenant must leave by a fixed date | Tenant can stay if they comply with court conditions |
| When courts tend to grant it | Serious or persistent breaches; tenant ignored earlier opportunities; trust irretrievably broken; arrears worsening; serious anti-social behaviour | Tenant has begun addressing the problem; breach is capable of remedy; eviction is disproportionate immediately |
| Typical conditions | None – tenant must vacate | Pay rent on time; reduce arrears by fixed instalments; cease nuisance behaviour; allow inspections; engage with support services |
| Most common grounds | Ground 14 (serious nuisance, violence, criminal conduct) | Grounds 10, 11, 12, some Ground 14 cases |
| If tenant breaches conditions | Enforcement proceeds without a fresh claim | Landlord can apply to enforce without starting new proceedings |
Example: Ground 14 claim used after repeated noise complaints
A landlord brought a Ground 14 claim after a tenant’s repeated noise complaints escalated to a police-attended incident and formal warnings from the local authority. The landlord produced police incident numbers, a log of neighbour complaints and copies of written warnings issued over six months.
The judge found the behaviour serious and persistent, and an outright possession order was granted. The suspended order route was rejected on the basis that the tenant had been given multiple prior opportunities and had not modified their conduct.
Illustrative example — not a named client case
What Evidence Do Landlords Need for a Discretionary Claim?
Under discretionary grounds, landlords are not simply proving a breach – they are persuading a judge that possession is reasonable. The quality of the evidence often determines whether the court grants outright possession, a suspended order or nothing at all.
Judges respond well to dated records, written communication, independent evidence, consistent timelines, professional reports and documented attempts to resolve the issue before court.
What Does Weak Evidence Look Like?
Weak discretionary claims regularly fail because landlords rely on vague verbal complaints, undated photographs, emotional accusations, unsupported allegations and incomplete rent records.
A landlord who cannot demonstrate a clear timeline, written warnings or independent corroboration faces a difficult hearing. The absence of documentation does not just weaken the claim – it can lead the judge to question whether the breach was as serious as alleged.
Example: Ground 12 used after unauthorised occupant found living at property
A landlord sought possession under Ground 12 after discovering an unauthorised occupant had been living in the property for several months. The landlord produced the signed tenancy agreement, a written warning letter served after an inspection, photographic evidence from that visit and a record showing the tenant had not responded to three follow-up communications.
The judge granted an outright possession order, noting that the tenant had been given a clear opportunity to remedy the breach and had not done so.
Illustrative example — not a named client case
The table below sets out the evidence that typically strengthens each ground:
| Ground | Most Useful Evidence |
| Ground 9 | Tenancy details, photos and floor plans of alternative property, rent comparison, accessibility information, school and travel proximity, availability confirmation |
| Ground 10 | Full rent ledger, bank statements, tenancy agreement, payment reminder records, evidence of repayment discussions |
| Ground 11 | Chronological payment history, spreadsheet showing recurring late payments, prior warning notices, evidence of repeated payment promises |
| Ground 12 | Signed tenancy agreement, photographs and videos, inspection reports, written warnings, witness statements, contractor reports |
| Ground 13 | Inventory and check-in reports, dated photographs, inspection reports, contractor estimates, invoices, comparison photos from tenancy start |
| Ground 14 | Police incident numbers, witness statements, neighbour diaries, CCTV footage, audio/video recordings, local authority complaints, warning letters |
| Ground 14A | Police reports, injunctions, MARAC documentation, social worker reports, safeguarding records |
| Ground 14ZA | Criminal conviction records, court documentation, police evidence, proof linking conduct to the locality |
| Ground 15 | Inventory reports, before-and-after photographs, receipts for damaged items, professional cleaning or restoration reports |
| Ground 17 | Tenancy application forms, referencing reports, forged documents, communications showing misrepresentation |
| Ground 18 | Support plans, meeting attendance records, warning letters, records of refused engagement, communications from support workers |
Should Landlords Combine Discretionary and Mandatory Grounds?
In rent arrears cases, landlords can rarely rely on Ground 8 alone.
The standard approach, however, is to combine Ground 8 (mandatory), Ground 10 and Ground 11 in the same possession claim.
Ground 8 is the primary route – if the statutory arrears threshold is met at both the notice date and the hearing date, the court must grant possession. But arrears frequently fall below the threshold before the hearing. Tenants often make partial payments at the last moment specifically to defeat a mandatory claim.
By adding Grounds 10 and 11, the landlord retains discretionary arguments even if Ground 8 fails.
Ground 11 is especially valuable because it can succeed even where the tenant clears all arrears before the hearing – persistent late payment behaviour remains relevant regardless of the current balance.
At the hearing, the landlord must tell the judge whether to proceed on Ground 8 or the discretionary grounds.
Example: Ground 8, 10 and 11 used as tenant was six months behind on rent
A landlord served notice citing Grounds 8, 10, and 11 after a tenant accumulated six months of arrears. By the hearing date, the tenant had cleared the balance – defeating Ground 8.
Because Grounds 10 and 11 had been pleaded, the judge examined the full payment history – a detailed rent ledger showed the tenant had been paid late in 14 of the previous 18 months and had broken two repayment arrangements. The judge granted a suspended possession order with strict conditions on future payment.
Illustrative example — not a named client case
What Are the Risks of Bringing a Weak Discretionary Claim?
A weak discretionary claim carries three serious risks: dismissal, a suspended order instead of outright possession and cost exposure.
If the court finds the claim was premature or poorly evidenced, the entire claim is dismissed. The landlord leaves the hearing with nothing – and faces the prospect of bringing fresh proceedings from scratch.
A suspended possession order is the more common outcome of a marginal claim. The tenant remains in the property on conditions. If those conditions are later breached, the landlord can apply to enforce the order – but that process takes time and tenants regularly apply to the court for a stay of execution. Judges often reinstate the suspended order. The landlord remains in a cycle of proceedings.
https://strikescs.com/enforcement-services/section-8-notice-serving/
What Happens if the Judge Dismisses the Claim?
Dismissal ends the current proceedings. The landlord does not recover the property.
Where the court concludes the claim was brought prematurely, with inadequate evidence, or where the landlord’s own conduct was questionable, the judge may criticise the landlord on costs. In some cases, this results in an adverse costs order – the landlord pays the tenant’s legal costs.
The practical exposure adds up quickly – court fees, solicitor fees, adjournment costs and potential costs awards can make a failed discretionary claim significantly more expensive than landlords anticipate.
The safest approach is to build the evidence before issuing proceedings – not after.
How Strikes Property Services Can Help
Tenants are aware of the possession process – and of the timelines involved. Delays caused by incorrect paperwork or missed compliance checks give tenants more time in the property and leave landlords exposed.
I founded Strikes Property Services in 2012, after a career as a certificated enforcement agent. I understand possession claims inside out. My team handles both Section 8 notice serving and possession orders under the Renters’ Rights Act 2025 rules.
Key deliverables when working with Strikes:
- Section 8 notice preparation and serving – correctly cited, correctly timed
- Possession claim filing and court pack preparation
- Solicitor advocate briefing and management for possession hearings
- Warrant of possession applications – county court and High Court routes
- End-to-end support from notice to vacant possession
If you need help with the Section 8 possession process, contact Strikes Property Services today.
