Conflicting Information on Section 8

[greengriff]

Over the time of reading this forum I have seen conflicting information regarding when it's OK to serve a Section 8 notice. (My comments are assuming a tenancy paid monthly in advance rather than a Housing Benefit style tenancy where you may well set the tenancy up monthly but accept rent 4 weekly in arrears and so the tenant is in arrears immediately 2 payments are late).

I have seen the following 3 scenarios given as the 'right' time to serve S8 on this forum:

1. When the tenant has missed 2 payments and his 3rd payment is due (i.e he is fully 2 months in arrears).

2. 14 days after his 2nd payment is missed (providing there is a suitable clause in the tenancy agreement)

3. 1 day after his 2nd payment has been missed. This is the most recent one I have seen and it is mentioned only a few threads below this one.

Obviously not all of these can be right. Number 3 is the ideal scenario, but I have the feeling that this is incorrect and that this was missed in the last thread. Can somebody a lot more knowledgeable than me (i.e. anyone ;-) confirm once and for all which scenario is correct, as this is rather inportant!

[jeffrey]

I say number 3.
See precise wording of ground 8 in Schedule 2 to 1988 Act. For weekly and monthly rents, it requires that "at least [eight weeks'][two months'] rent is unpaid". Compare this to quarterly/yearly rent, where the wording is not "unpaid" but "in arrears".

[greengriff]

Yes, the wording on my S8 form says that, but strangely the part of the housing act you mention say someting different:

http://www.legislation.gov.uk/acts/acts1988/ukpga_19880050_en_14#sch2

I know this was amended by the 1996 act here:

http://www.opsi.gov.uk/acts/acts1996/ukpga_19960052_en_9#pt3-ch2-pb2-l1g103

But the 1988 act specifically states 'assured' and not 'assured shorthold' tenancies, and I can't find any amendment to the contrary. :-( Have I missed something?

[greengriff]

As a follow up, when you're going for ground 10(a) as well as ground 8, do the words 'date on which the proceedings for possession are begun' refer to the date you serve notice, or some other date as defined by the court (such as when they set the date for a court appearance)?

[jeffrey]

As a follow up, when you're going for ground 10(a) as well as ground 8, do the words 'date on which the proceedings for possession are begun' refer to the date you serve notice, or some other date as defined by the court (such as when they set the date for a court appearance)?

Serving Notice is NOT "beginning proceedings". Compare:
i. paragraph 10(a) ["...the date on which proceedings for possession are begun..."]; and
ii. paragraph 10(b) ["...the date of the service of the Notice..."].

Proceedings are begun when the Court application is lodged.

[greengriff]

So why would anyone put ground 10(a) as a ground when serving a Section 8, as you can't possibly know for sure (although you could make a pretty good guess) that the tenant will be in some arrears when you file the court papers (which you may continue to file anyway under ground 11 perhaps?). Seems like a great opportunity for the judge to throw out the claim on a technicality? Strange as the RLA section 8 form comes pre-filled with ground 10.

[jeffrey]

Look: there is no "ground 10(a)". It's just ground 10.
If T is in arrears at time of Notice service, use:
a. g8 if [monthly] rent is unpaid for one month + one day; and
b. g10, with or without g8, in ALL cases; plus
c. g11, if T has persistently paid late- this ground could apply (even without g8/g10) if rent is now paid up-to-date.