Defending Ground 8 Possession Claims Post-Pandemic
Ground 8, Schedule 2 of the Housing Act 1988:
Both at the date of the service of the notice under section 8 of this Act relating to the proceeding for possession and at the date of the hearing-
- if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;
- if rent is payable monthly, at least two months’ rent is unpaid…
and for the purposes of this ground, rent means rent lawfully due from the tenant.
A familiar tactic in resisting Ground 8 challenges in the past has been to bring a counterclaim and to offset the damages from the counterclaim against the arrears owed. In many cases, this was sufficient to bring the rent lawfully due at the date of the hearing below the threshold required for Ground 8 to apply. Following the pandemic, more and more cases, including those with substantial counterclaims, have far too great rent arrears for this to be effective.
Post-pandemic tenants looking to file a counterclaim may find some relief from the case of Baygreen Properties Ltd -v- Gill. Here, Clarke LJ said that where there had been a breach by a landlord of repairing obligations, any damages awarded for that breach may be set off against the rent arrears and that this deduction should be taken into consideration when the Ground 8 notice is served. This may be of practical use where at the date of service, the deduction for the breach of landlords obligations is such that the arrears do not meet the threshold required by ground 8.
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