Ground 10: Some Rent Arrears (Discretionary)

Ground 10 is the discretionary counterpart to Ground 8's mandatory rent-arrears route. It has no minimum threshold — any arrears at all, tested at two specific points that are easy to state imprecisely — but leaves the final decision to the court's judgement rather than a fixed rule.

Statutory basis

Ground 10 is a long-standing ground within Schedule 2 to the Housing Act 1988, retained (not substantially altered in its own terms) by the Renters' Rights Act 2025's reform of the wider Schedule.

What it requires — precisely

The statutory test has two limbs, and the timing is not "at service and at the hearing" (a common shorthand that overstates the requirement):

• Some rent is unpaid on the date proceedings for possession are begun — broadly, when the claim is issued at court, not the later hearing date, and
• The rent was in arrears at the date the notice was served (except in a narrow situation where a different subsection of section 8 applies instead).

There is no minimum amount, unlike Ground 8's three-month/13-week rule. In principle, a single month's arrears meeting both limbs can support a Ground 10 notice — though whether the court actually grants possession is a separate question, governed by reasonableness. Because the test looks at the date proceedings begin rather than the hearing date, arrears that are paid down between the claim being issued and the actual hearing do not automatically defeat a Ground 10 case the way they would defeat Ground 8 — though a court exercising its discretion will still take a change in the tenant's position into account when deciding reasonableness.

Mandatory or discretionary

Discretionary. Proving arrears exist is not enough on its own — the court must also decide it is reasonable to grant possession, weighing the tenant's circumstances, conduct, and the specifics of the arrears against the landlord's interest in recovering the property. This is the fundamental difference from Ground 8: proving the fact does not automatically produce the remedy.

Notice period

4 weeks, matching Ground 8.

Why Ground 10 matters as a fallback to Ground 8

Ground 10's real value in practice is as an insurance policy against Ground 8's fragility. Because Ground 8 requires the three-month/13-week threshold to be met at the hearing as well as at service — a later, harder-to-protect cutoff than Ground 10's own "date proceedings begin" test — a tenant who pays down arrears to just under the mandatory threshold before the hearing defeats Ground 8 outright, even after arrears were well above the mandatory level when notice was served and when the claim was issued. Pleading Ground 10 (and Ground 11) on the same notice and claim means the case does not collapse entirely in that scenario: the court can still consider possession on Ground 10, using its discretion, based on the arrears position at the earlier date the claim was issued.

This is why the standard drafting approach for a serious-arrears case is Ground 8 plus Grounds 10 and 11 together, not Ground 8 alone.

Evidence courts expect

• A dated, running rent ledger showing arrears at the point notice was served and at the point the claim was issued — the two dates the ground actually tests — kept current through to the hearing in case the court weighs later developments as part of reasonableness.
• Any payment history or communication from the tenant — a tenant who has made partial payments, proposed a repayment plan, or explained a temporary circumstance affecting their ability to pay will often influence the reasonableness assessment.
• The landlord's own conduct — whether reasonable engagement (payment plans offered, communication attempted) took place before the claim was brought can also factor into the court's assessment of reasonableness.

What courts weigh under the reasonableness test

Because Ground 10 is discretionary, there is no fixed formula — but courts commonly consider:

• The size of the arrears relative to the rent (a small balance is less compelling than a substantial one).
• Whether the trend is improving, static, or worsening.
• The tenant's personal circumstances — illness, job loss, benefit-processing delays.
• Whether the tenant has engaged constructively (proposed a repayment plan, communicated about difficulties) or been unresponsive.
• Whether a suspended possession order (rather than an outright one) might be a proportionate outcome, conditional on the tenant keeping to an agreed payment schedule.

Transitional position

Ground 10 was not substantively rewritten by the Renters' Rights Act 2025 in the way Ground 8's threshold was — it continues to operate as before, on any assured tenancy from 1 May 2026 onward, including tenancies converted from fixed-term ASTs.

Common mistakes

• Relying on Ground 10 alone in a case that could support Ground 8, and thereby accepting a discretionary hearing where a mandatory one was available — check the arrears against the Ground 8 threshold first.
• Letting the arrears position go stale before the hearing — the same evidential discipline that matters for Ground 8 applies here.
• Underestimating how much a tenant's engagement and payment efforts matter — a court exercising discretion weighs conduct, not just the raw arrears figure.

The cost of getting it wrong

As with every ground, citing Ground 10 without genuine arrears existing at both required points risks a civil penalty of up to £7,000, rising to £40,000 (as an alternative to prosecution) plus a possible rent repayment order of up to two years' rent, where the landlord acted knowingly or recklessly and the tenant left without a court order.

What happens next

If the tenant does not leave once the Form 3A notice expires, the landlord files Form N5 with Form N119 particulars of claim, court fee £415. Because Ground 10 is discretionary, expect the hearing itself to focus more on argument and evidence about reasonableness than a Ground 8 claim typically would.

Related grounds and guides

See Ground 8: Serious Rent Arrears for the mandatory route this ground backstops, and Ground 11: Persistent Late Payment for the companion discretionary ground. For the full ground list, return to Section 8 Grounds for Possession.