Excluded Grounds of Possession and Reliance on Mandatory Grounds in Hopkins and Finn Applications

In the recent unreported case of Poplar HARCA v Kerr. Clerkenwell & Shoreditch County Court. February 2022, the Court considered whether grounds of possession excluded within a tenancy agreement could be later introduced as grounds of possession.

Following London Borough of Tower Hamlets stock transfer in 1999 to Poplar HARCA, the tenancy agreement (as is common with many stock transfer agreements) had a clause restricting the grounds of possession Poplar could rely upon and restricting mandatory grounds, save for Ground 7.

A suspended possession order was made in 2017 on Grounds 10 and 11.  In February 2021, Poplar served a notice seeking possession, seeking to rely on Grounds 7A, 10, 11 and 14 and brought an application to vary the suspended possession order to an outright order. Kerr defended on the basis that Poplar had agreed in the tenancy that it would not use mandatory grounds.

The Court cited North British Housing v Sheridan [1999] 2 EGLR 138 and considered that the Court of Appeal had held that it was a necessary implication of an assured tenancy agreement, governed as it was by statute, that amended, new or substituted grounds could be relied upon. The agreement included one mandatory ground, so it could not be taken as a blanket exclusion of mandatory grounds.

A further argument was raised that Section 9 Housing Act 1988 could not be used to vary the possession order in this case because Section 9(6) excluded mandatory grounds was unsuccessful. The exclusion was for the original ground of possession, Section 9 did not prevent further grounds being relied upon for a variation of the order.

Although a County Court judgment and not binding in nature, this is a good case to consider when dealing with stock transfer restrictions on certain grounds for possession. Additionally, the potential to use mandatory grounds in Hopkins & Finn style variations of orders may avoid the need to consider the issue of new proceedings.