Mandatory vs discretionary Section 8 grounds

The difference between mandatory and discretionary grounds is what the court must do once you prove them. On a mandatory ground the court has to order possession; on a discretionary ground it orders possession only if it decides that is reasonable. Choosing the right mix of mandatory and discretionary grounds is one of the biggest decisions in any Section 8 notice.

What is the difference?

Section 7 of the Housing Act 1988 sets the rule:

	Mandatory grounds (Schedule 2, Part I)	Discretionary grounds (Schedule 2, Part II)
What you must prove	The ground's conditions	The ground's conditions and that an order is reasonable
What the court must do	Make a possession order (section 7(3))	Decide whether to make one (section 7(4))
Can the court suspend or adjourn under section 9?	No	Yes, with conditions
Latest possession date	14 days after the order, or up to 6 weeks for exceptional hardship	Any date the court thinks fit
Typical outcome when proved	Outright order	Outright or suspended order

"Must" still has limits. Even on a mandatory ground the court can't make an order if a deposit wasn't protected and the prescribed information given (except on Grounds 7A and 14), if one of the niche restrictions in section 7 applies, or if the tenant succeeds with a human rights defence.

Which Section 8 grounds are mandatory?

There are 26 mandatory grounds. These are the ones open to private landlords:

• 4 months' notice: Ground 1 (moving in), Ground 1A (selling), Ground 2 (mortgage lender), Grounds 2ZA to 2ZD (superior lease), Ground 4A (student HMO), Ground 6 (redevelopment), Ground 6B (enforcement action).
• 2 months' notice: Ground 5 (minister of religion), Ground 5A (agricultural worker), Ground 5C (end of employment), Ground 7 (death of tenant).
• 4 weeks' notice: Ground 5G (council placement ended), Ground 8 (serious rent arrears).
• 2 weeks' notice: Ground 7B (no right to rent).
• No minimum notice: Ground 7A (serious antisocial behaviour or crime).

The remaining mandatory grounds (1B, 4, 5B, 5D, 5E, 5F, 5H and 6A) are for social landlords, universities, charities or supported housing providers.

Which grounds are discretionary?

There are 11 discretionary grounds. Nine are open to private landlords:

• 2 months' notice: Ground 9 (suitable alternative accommodation).
• 4 weeks' notice: Ground 10 (some rent arrears), Ground 11 (persistent late payment).
• 2 weeks' notice: Ground 12 (breach of tenancy), Ground 13 (damage to the property), Ground 14ZA (rioting), Ground 15 (damage to furniture), Ground 17 (false statement).
• No minimum notice: Ground 14 (nuisance or antisocial behaviour).

Grounds 14A (domestic violence) and 18 (supported accommodation) are for social and supported housing landlords only.

What the court weighs up on a discretionary ground

The court looks at all the circumstances at the date of the hearing and balances the interests of the landlord, the tenant and the public. Factors that commonly matter include:

• the amount and history of any arrears, and why they built up (for example benefit delays, illness or hardship);
• whether the tenant has engaged with you and offered to pay;
• whether the problem is new or long-running;
• your own conduct and any support you offered;
• the effect of an order on the household;
• any counterclaim, such as disrepair, that could be set off against arrears.

Under section 9, the court can adjourn the case, stay or suspend the order, or postpone the possession date. When it does, it must impose conditions on paying arrears and rent unless that would cause exceptional hardship or be unreasonable. A suspended possession order on payment terms is a common result: the tenant stays as long as they pay the current rent plus an agreed amount towards the arrears. If they break the terms, you can apply for a warrant.

Good records make the difference here. A clear rent schedule, copies of reminders, notes of any payment plan you offered, and evidence of the impact on you all help the court decide in your favour.

What happens when a mandatory ground is proved

If you prove a mandatory ground and no restriction applies, the court must make an order and can't use its section 9 powers to adjourn, suspend or postpone it. The possession date is normally within 14 days, and no more than 6 weeks if the tenant shows exceptional hardship.

The catch is proof. Each mandatory ground has precise conditions, and some are tested at more than one point:

• Ground 8 needs the arrears threshold met at service and at the hearing. If the tenant pays enough to bring the arrears below 3 months' or 13 weeks' rent before the hearing, Ground 8 fails.
• Grounds 1 and 1A need evidence of a genuine intention (a family member's plans, or an estate agent instruction) and a notice date outside the first year of the tenancy.
• Ground 6 needs plans showing the work can't reasonably be done with the tenant living there.

Why landlords combine mandatory and discretionary grounds

Adding discretionary grounds to a mandatory one gives the court a fallback if the mandatory ground fails on the day.

Situation	Mandatory ground	Discretionary back-up	Why
Rent arrears	8	10 and 11	If arrears dip below the threshold, the claim continues on 10 and 11
Serious antisocial behaviour after a conviction	7A	14	If the conviction route fails (for example an appeal is pending), Ground 14 covers the behaviour
Damage plus arrears	8	10, 11, 13	Each problem gets its own ground and explanation
Breach of the tenancy agreement	None	12	Use a mandatory ground too only if one genuinely applies

Two cautions apply. The date in your notice must allow for the longest notice period among all the grounds, so a slow ground can delay a fast one. And only include grounds you reasonably believe you can prove. Relying on a ground without that belief can lead to a council penalty of up to £7,000 if the tenant leaves within 4 months.

What to do next

Check the conditions for each ground you're considering in the full list of Section 8 grounds, and read what possession orders the court can make. For arrears cases, the Section 8 rent arrears guide shows how Grounds 8, 10 and 11 work together. When you're ready, ValidNotice suggests the grounds that fit your answers and builds them into Form 3A; start from the Section 8 notice guide.