The Possession Procedure – 1988 Housing Act
The possession procedure under Section 8 of the Housing Acts 1988 & 1996 is known as the Section 8 Route and is available to landlords where the tenant is in breach of one or more terms of his tenancy – it’s a fault based system.
The Section 8 Route gives 8 mandatory and 10 discretionary grounds for possession for breach of contract, but the results are not always straightforward – you might not get the result you want, i.e. a possession order and or a money order.
Also, whereas the s21 route cannot proceed until both the notice period and the fixed-term have expired, the s8 route cancommence at any time once the s8 notice period has expired.
However, a Section 8 notice can be a very effective way of asserting your authority as a landlord or agent, and the notice is effective for 1 whole year. It puts the tenant on notice that there has been a breach and that you are prepared to take the matter to court if necessary.
You must specify the ground/s that you intend to rely on to claim possession, arrears etc. The notice must also give precise details of the breach as set out in one or more of the 18 Grounds for Possession (Housing Acts 1988 & 1996) and it’s a good idea to use the exact wording as set out in the Act.
The Housing Acts 1988 and 1996
http://www.legislation.gov.uk/acts/acts1988/ukpga_19880050_en_1 Schedule 2, Grounds for Possession of a Dwelling House – there are 16 Grounds listed.
Ground 17 (Landlord was induced to grant the tenancy by a false statement made knowingly or recklessly) was introduced in the Housing Act 1996, Chapter 2, s102.
For rent arrears, and this is perhaps the most common reason to use s8 you should consider using grounds 8, 10 and 11.
Ground 8: the tenant owes at least two months in rent (monthly tenancies) both on service of notice and at the time of the court hearing. Where rent is payable weekly, quarterly or annually ground 8 requires that there are arrears of 8 weeks, 3 months and 6 months respectively.
Ground 10: the tenant was in arrears when the landlord served notice and when court proceedings began.
Ground 11: the tenant has been persistently behind and inconsistent with rent payments.
Problems with Section 8
Unlike the s21 route, if successful s8 can give you both a possession order and a money order for arrears of rent without separate hearings, but if possession is your priority you may not achieve this.
In the case of rent arrears (Ground 8) tenants can undermine your claim by paying off some of the arrears (arrears must be 8 weeks at the time of the notice and at the hearing). The tenant/s may claim that repairs have been requested and not carried out or that you have been harassing them.
Where tenants are able to gain the sympathy of a judge he or she may grant a suspended possession order. This gives the tenant/s time to “mend their ways” and comply with the terms of the suspension, in which case the possession order will not be enforced.
It is also possible with the s8 route that the tenant can bring a counter claim, sometimes for spurious matters such as defects in the property.
You need to consider carefully which route to use – the length of time the tenancy has still to run will be a big factor here. For practical purposes it may be more cost effective and less of a risk in the long run to await the end of the term and to take the greater certainty of the s21 route. This can be better, even if it is necessary to take further action later to recover rent arrears and dilapidation’s costs etc.
Section 8 and Anti Social Behaviour
Nuisance, noise, general anti-social behaviour and damages are contentious issues and notoriously difficult for a landlord to prove. It’s generally only worth pursuing the s8 route as far as the courts in these circumstances if the tenancy has a long period left to run and perhaps where neighbours or other tenants are complaining.
It’s a reminder to landlords that issuing long tenancies – more than six months – can introduce an element of risk for if the tenant is not proven in performance. If you are affected by anti social behaviour problems collect all the evidence you can by keeping a diary of disturbances and reportings to the police and take statements from witnesses.
Harassment of Tenants
Never be tempted to threaten a tenant or interfere with the property in any way or you could be accused of harassment. Under the Protection from Eviction Act 1977 there are some severe penalties for landlord convicted of harassment, which is a criminal offence.
If relations become strained it’s best to avoid personal contact with your tenant/s without a witness being present, or better still, use a third party. You may be wrongfully accused of harassment that can be very difficult to disprove.
Voluntary Surrender: If the tenant will not leave voluntarily of his own free will by surrendering the tenancy (usually confirmed in writing, ideally a deed of surrender and by return of keys) the only way you can lawfully evict a troublesome tenant is by serving notice and obtaining a possession order. A court bailiff must then enforce this if physical eviction is necessary.
Difficulties arise where a tenant abandons the property (or appears to do so) perhaps owing a substantial amount of rent. Further complications arise if the tenant leaves possessions behind.
Re-entering, changing locks and even re-letting the property in these circumstances can be very risky for a landlord – it is possible it could result in both criminal charges and punitive civil damages.
The correct and the only safe procedure is to obtain a possession order having served a s21 or s8 notice, which must have expired.
There is a defence for taking over the property in such circumstances but it’s by no means fool proof. You must be able to prove to a Crown Court Jury that you had good reason to believe that the tenancy had been abandoned and that you had taken all reasonable steps to confirm this and contact the tenant.
Posting a notice on the premises, contacting the local authority rent officer and contacting next of kin (you should have a contact person if the tenant completed a Tenancy Application Form) are all reasonable steps you could take, but these are no guarantee you won’t be prosecuted for Unlawful Eviction or Harassment, should the tenant return.
The Main Points of the Section 8 Route (from the Housing Act):
- the landlord or, in the case of joint landlords, at least one of them, has served on the tenant a notice in accordance with the relevant section (s8) and the proceedings are begun within the time-limits prescribed and clearly stated on the notice
- the notice must be given in the prescribed form – there forms are available from legal stationers or downloaded from this web site
- the notice must specify the ground or grounds why a landlord seeks possession.
- The Housing Acts provide 18 grounds that a landlord can use to recover possession under s8. (Ground 14a applies only to Registered Social Landlords). The landlord must specify in the notice which ground he intends to rely on and give precise particulars of the ground or grounds which apply.
The Section 8 Route can be used for both Assured Shorthold Tenancies and Assured Tenancies, whereas the Section 21 Route can only be used for ASTs.
If you do decide to go the Section 8 Route you should also make sure a Section 21 Notice has been served either before or with the Section 8 Notice in case the courts decide to suspend the possession order under the s8 route.
Notice Periods Required
Serving a Section 8 Notice – You must serve notice seeking possession of the property on the tenant before starting court proceedings. You need to give the following periods of notice:
Grounds 3, 4, 8, 10, 11, 12, 13, 15 or 17 – at least 2 weeks
Grounds 1, 2, 5, 6, 7, 9 and 16 – at least 2 months
For ground 14 – you can start proceedings as soon as you have served notice.
Where the tenancy is a contractual periodic or a statutory periodic tenancy, the notice must end on the last day of a tenancy period after which possession is sought
Serving Tenancy Notices.
Notices can be served (1) in person, (2) at the property (through the letter box) (3) by mail. Remember to keep copies of everything.
- Serving in person is perhaps the preferable method as there’s no doubt about the actual date of service, but have a witness.
- Service at the Property through the letter box is also a good method, but a witness is also important here.
- Service by mail is an acceptable method (first class post – next day delivery) but allow 3 working days for delivery and use “Proof of Postage” This means the Post Office will give a receipt of postage and the address to which the notice is sent. This will be accepted by the court if you have a receipt.
Recorded Delivery can cause problems if the intended recipient refuses to sign. This means it’s returned to you, by which time you may have missed the trigger date and you may then need to give an extra month’s notice.
Appearing in Court
The County Court procedure is quite informal and friendly to the layman.
The courts and judges however can be slow and inconsistent in the way they deal with these cases and will throw out cases on the slightest technicality – wrong service dates etc. Take care to get the details absolutely correct, and if you have done your legal homework be prepared to challenge if necessary.
Landlords get a bad press anyway and usually don’t get as much sympathy in court as do their tenants.
Try hard to avoid the “Rigsby slumlord” syndrome by presenting yourself as a smart-suited professional.
Present your case clearly and concisely with well organized factual evidence.
Avoid making personal slights and insults or responding to these – stick strictly to the facts.
Generally these hearings are quite informal so you don’t have to be a Philadelphia lawyer to win your case!
By Tom Entwistle,
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©LandlordZONE All Rights Reserved – never rely totally on these general guidelines which apply primarily to England and Wales. They are not definitive statements of the law. Before taking action or not, always do your own research and/or seek professional advice with the full facts of your case and all documents to hand.