Mandatory vs Discretionary – What’s the Difference?
When a landlord serves a Section 8 notice, the ground relied upon will usually be varied and considers mandatory vs discretionary. Understanding the difference is important because it affects what the landlord must prove and how much discretion the court has when deciding whether to make a possession order.
With a mandatory ground, the court must make a possession order if the landlord proves that all of the legal requirements for that ground have been satisfied.
With a discretionary ground, proving that the ground applies does not automatically mean possession will be granted. The court must also consider whether it is reasonable to make a possession order in the circumstances.
This distinction between mandatory vs discretionary is particularly important with rent arrears cases, where landlords will often rely on Grounds 8, 10 and 11 together. Although all three relate to the tenant’s payment of rent, they work differently and provide different levels of protection if the tenant’s arrears change before the court hearing.
Mandatory vs discretionary – Table of differences
| Feature | Ground 8 | Ground 10 | Ground 11 |
| Type of ground | Mandatory | Discretionary | Discretionary |
| Minimum arrears required | Yes | No | No |
| Court must grant possession if requirements are met? | Yes, if the statutory requirements are met | No – the court decides whether it is reasonable | No – the court decides whether it is reasonable |
| Must arrears exist when the notice is served? | Yes | Yes | No – the focus is on persistent late payment |
| Must arrears still exist at the court hearing? | Yes | Yes | No – the court considers the tenant’s payment history, even if arrears have been cleared |
| Main focus | Serious rent arrears | Any rent arrears outstanding | Persistent delay in paying rent |
| Commonly used with other grounds | Yes | Yes | Yes |
Why Landlords Often Use More Than One Ground
A tenant’s rent arrears can change considerably between serving the notice and attending a possession hearing.
For example, a landlord may initially be able to rely on Ground 8, but the tenant could reduce the arrears below the required threshold before the hearing. If that happens, Ground 8 may no longer be established.
Including Ground 10 and/or Ground 11, where the facts support them, can therefore give the court additional grounds to consider. Unlike Ground 8, however, Grounds 10 and 11 are discretionary, so the landlord must still satisfy the court that it is reasonable to make a possession order.
Key Takeaway
Many landlords rely on Grounds 8, 10 and 11 together where the circumstances support all three.
Ground 8 provides a mandatory route where the required level of rent arrears exists at the relevant times. Grounds 10 and 11 provide additional discretionary grounds relating respectively to rent arrears and persistent delay in paying rent.
Using several grounds does not guarantee possession, but it can prevent the landlord’s case from depending entirely on whether the Ground 8 arrears threshold is still met by the time of the court hearing.
Why the Difference Matters in Practice
The distinction between mandatory vs discretionary grounds can make a significant difference to the way a landlord prepares a possession case.
With a mandatory ground, the emphasis is on proving that the legal conditions for that ground have been met. With a discretionary ground, the landlord may also need to provide evidence showing why it would be reasonable for the court to make a possession order.
This can include evidence such as a clear rent statement, payment history, correspondence with the tenant and records of any previous attempts to resolve the problem.
Keeping Accurate Records
Good record keeping is particularly important where a landlord is relying on discretionary grounds.
A detailed rent schedule can help demonstrate whether arrears have been persistent, whether payments have regularly been made late and how the tenant’s payment history has developed over time.
Landlords should also keep copies of relevant correspondence, notices and any agreements made with the tenant regarding repayment of arrears.
Clear records can make it easier to demonstrate the circumstances of the case if possession proceedings eventually reach court.
Choosing the Correct Grounds
Landlords should only include possession grounds that genuinely apply to the circumstances of the tenancy.
Using several grounds can strengthen a case where each ground is properly supported by evidence, but simply adding additional grounds does not automatically improve the chances of obtaining possession.
Before serving a notice, landlords should therefore consider mandatory vs discretionary grounds or both when looking at the tenant’s current arrears, their previous payment history and the evidence available to support each ground being relied upon.
Getting the mandatory vs discretionary grounds and notice correct at the outset can help reduce the risk of delays later in the possession process.