If there is one set of Section 8 grounds that letting agents are bound to become even more familiar with over the next couple of years, it’s Grounds 8, 10, and 11.
Those agents who have done their homework will recognise these grounds as the three concerned with rent arrears. While they all cover the same area, they don’t all work in the same way.
Rent arrears are always a concern for landlords and letting agents, so I would say these three grounds are ones you must absolutely get right if you want to get your property back.
Before we get into the grounds themselves, I feel it’s important to lay out the main differences between them. Ground 8 is mandatory, while Grounds 10 and 11 are discretionary.
The difference between these two structures is very simple.
If a mandatory ground is proven, the court must make a possession order. There’s no wiggle room here; the judge doesn’t get to decide whether they think the eviction is reasonable. If you’ve established the ground, then possession follows. That also means that a lot of effort in terms of defending claims goes into undermining the mandatory element and trying to find ways to get the arrears below the threshold at which ground 8 applies.
Discretionary grounds operate differently. Even if the landlord proves that the ground in question is made out, it’s still the judge's final decision whether it’s reasonable to grant possession.
So what does this distinction mean for the grounds we’re thinking about today?
If a tenant reaches the Ground 8 threshold and that threshold is still satisfied at the hearing, the landlord has the strongest possible position: the court must grant possession.
With Grounds 10 and 11, the court must answer another question: is possession reasonable in the circumstances?
And that's why these grounds tend to be used together.
Ground 8 gives you the mandatory route. Grounds 10 and 11 provide a discretionary alternative if something changes along the way.
In short, Ground 8 is the one you really want. Grounds 10 and 11 are the backups. That does not mean that Grounds 10 and 11 cannot be used without Ground 8. They can be, and they are.
“You can use this ground to evict your tenant if they owe you at least 3 months’ rent, if they pay rent monthly or at least 13 weeks’ rent, if the rent is paid weekly or fortnightly.
“Your tenant will need to owe you 3 months or 13 weeks' rent on the day you give them the notice and at the date of the hearing.” - Grounds for possession: guidance for landlords and letting agents, Gov.uk
Ground 8 is relatively simple and straightforward.
If a tenant has reached the relevant level of arrears (3 months' rent if they pay monthly, or 13 weeks’ rent if they pay weekly), the ground is justified, and the court must grant possession.
What some agents may not have considered is that you don’t necessarily have to wait 3 full months before a Ground 8 notice becomes available. Time matters less than the actual level of arrears and the missed payments.
This means that if the rent is due monthly on the 1st, the relevant arrears can be reached as soon as that payment is missed three times. A tenant paying only half their rent for six months could also reach the same level of arrears.
“If your tenant owes you rent, you can try and evict them before they owe you 3 months’ rent. However, you will only get a possession order to evict them if the court believes it is reasonable.” - Ground 10, Grounds for possession: guidance for landlords and letting agents, Gov.uk
“You can try to evict your tenant if they have repeatedly delayed paying rent.” - Ground 11, Grounds for possession: guidance for landlords and letting agents, Gov.uk
You may be asking the question: “Why should I bother with Grounds 10 and 11 if Ground 8 is mandatory?”
Well, when you bring forward a Ground 8 notice, the tenant can always pay up.
While that may sound obvious, it presents a real practical problem.
Say that your tenant has reached the level of arrears needed for Ground 8. You issue court proceedings. Then, the day before the hearing, the tenant makes a payment that takes the arrears below the Ground 8 threshold.
Suddenly, your mandatory ground doesn’t look so mandatory, and your landlord is stuck with a tenant they'd really rather see the back of.
This is where Ground 10 and 11 come in. They’re a safety net that says: “Yes, the tenant has reduced the arrears enough to defeat Ground 8, but this is still a persistent or significant rent problem and we believe possession is reasonable.”
By serving the grounds together, you give yourself and your landlords a toolkit to cover all eventualities.
There is another important point we need to cover here, as I believe it will become increasingly important in the Private Rented Sector: suspended possession orders.
If Ground 8 has fallen away, but the court is satisfied that there is still a serious, ongoing rent problem, the judge doesn’t necessarily have to choose between evicting the tenant immediately and doing nothing.
They can make a possession order but suspend it on conditions.
That might mean that the tenant has to keep paying the rent going forward, plus an
additional amount every month to help clear the arrears. These orders are common in the social housing sector, and I personally expect them to become much more common in the private sector.
Why, I hear you ask? Because Section 21 used to provide landlords with an alternative. If the tenant’s arrears weren’t serious enough to justify a mandatory Ground 8, a landlord could simply solve the issue with a no-fault eviction.
Now that Section 21 isn’t available, landlords may increasingly have to make a choice about whether they’re prepared to tolerate low-level arrears or take a stronger formal action against it.
Arrears claims also come with another consideration.
In these cases, it’s not enough to know how much the tenant owes. You need to know how much the landlord might owe the tenant.
In certain situations, the tenants will be able to make a counterclaim against your landlords.
The two obvious examples I can see turning into an issue are:
If the landlord you’re working with launches a claim, but the property they’re providing the tenant is in serious disrepair, it will almost certainly trigger a counterclaim.
Similarly, if the tenant’s deposit hasn’t been properly protected, it also needs to be addressed as quickly as possible, before your landlord files a claim.
This is where you could offer some real value to your landlords. Helping them get their houses in order, literally and figuratively, helps avoid counterclaims and shows your landlords the benefits of an attentive, knowledgeable agent.
There is an interesting issue when arrears are caused by Universal Credit (UC).
Grounds 8, 10 and 11 claims will be thrown out if the arrears are due to a tenant running into difficulties with their UC payments or access.
Unlike social landlords, who, with the tenant’s consent, can access UC information, private landlords are kept in the dark. This means your landlords won’t know whether their tenant hasn’t been paid their UC benefit, or has been paid but hasn’t passed it on.
That creates a difficult position for landlords trying to determine why the rent hasn't been paid.
It's a good example of why arrears possession claims aren't always as simple as looking at a rent statement and counting the months.
Grounds 8, 10 and 11 might look like some of the simplest Section 8 grounds.
In one sense, they are.
But the simplicity of the grounds hides considerable practical complexity.
The key thing for agents is to think beyond the arrears figure on the day the notice is served. The tenant might pay. A counterclaim might arise. The court might consider a suspended possession order. And increasingly, landlords will have to decide how far they're prepared to go in cases where arrears don't quite reach the mandatory threshold.
Ground 8 is the goal.
Grounds 10 and 11 are the safety net.
And with Section 21 no longer available as an alternative, understanding how those three grounds work together will become much more important.