Obtaining Possession Using Section 8 Notices
This article explains how to gain possession of your residential rental property using the Section 8 procedure.
Section 8 is a breach of contract court procedure.
There are 17 grounds for possession listed in the Housing Acts 1988 & 1996, so your claim for possession must cite one or more of these grounds. Some of these grounds give qualified mandatory possession, whereas most are discressionary – here the judge decides given the circumstances.
Section 8 and Schedule 2 of the Housing Act 1988 specify the rules you need to follow to legally obtain possession of a residential property let under an Assured Shorthold Tenancy (AST) when your tenant is in breach of contract.
Section 8 can be used during the fixed term, unlike section 21 which must be used after the fixed term has ended – the AST has a minimum term of 6 months.
The AST is the default residential tenancy in England and Wales, which means that if you let any residential property (not lodgers or live-in landlords) you will automatically create an AST, unless you specify otherwise. This is the case even if you did not have a written agreement.
Using section 8 is quicker than section 21, usually with only a 2 weeks’ notice period, and you can add a money claim in to the process. But there are potential drawbacks. If a savvy tenant makes a credible defence, or brings a counter claim against the landlord, (usually for some form of damage or harassment) you can get yourself into an expensive legal process.
Section 21 – An Alternative Method
Using the section 21 procedure to gain possession of your property should always be the preferred method because, providing all your paperwork is in order, you are guaranteed to get a possession order.
There’s no need to give a reason for requiring possession using section 21, and providing all your paperwork is in order you can use the accelerated process, which means it’s document based and there’s no need for a court hearing. The process is not quick, but quicker than having a hearing.
The drawback to section 21 is that there’s a 2 months’ notice period, you can only use it at the end of the tenancy fixed term, and when using the accelerated route you cannot add a money claim.
With the accelerated route you need to go to a Small Claims Court later if there’s a debt involved.
The Standard Section 21 route involves a court hearing, which can take a little longer, but you can add a money claim to the process.
Serve Two Notices
You should always serve both an s21 and an s8 notice as soon as you have problems with your tenant, such as rent arrears. This gives you the option of using one or the other route later if things don’t improve, and most importantly it means the notice periods have started ticking immediately the signs of trouble arose.
When to Use Section 8
Section 8 should be used when:
- The tenancy has a long period to run – you should always let for 6 months only until you know the tenants, but 12 month lets are still common. If your tenant fails to pay rent in month 2 and 3 of a 12 month tenancy you have no option but to use s8. You cannot use s21 until the 12 months is up.
- The rent arrears are in excess of 2 months and you suspect the tenant will not be able to pay part of the debt off in court.
- You judge that your tenant will not be in a position to concoct a credible defence or bring a counter claim against you
When can I Serve a s8 Notice
You can serve a s8 notice at any time during the tenancy providing your tenant is in breach of contract and you can justify your claim under one of the 17 grounds for possession. However, for rent arrears, you should wait until your tenant is at least 2 months in arrears before applying to court.
How is 2 months’ Rent Arrears Calculated?
Where rent is paid in advance (usually it is) the tenant will be in arrears by a full rent period as soon as the payment is missed. For example, rent payable on the 1st of the month is one-month in arrears on the 2nd of the month. Two months arrears occur when the tenant misses the payment twice, that is no rent on the rent day of the 2nd month.
Where a tenant pays rent short, as long as the total rent arrears add up to two months’ worth, you can claim mandatory possession. The problem here is, you may not get it if the tenant pays off SOME of the arrears.
Before You Apply to Court
You must make sure your tenant (and any guarantor) is aware of rent arrears by sending warning letters and ideally a detailed rent schedule showing the current position. It’s a good idea to send reminder letters every week once a tenant gets into arrears – see our Documents Section – https://www.landlordzone.co.uk/2013rd/documents
You should try to establish why the rent arrears situation has come about and gather as much documentary evidence as you can to show that you have tried to help the tenant – letters, emails etc. Try to get your tenant to confirm in writing that the arrears are not due to any dispute with you over disrepair or a bad relationship, thereby heading off any possibility of a counter claim in court against you. Make sure your reminder letters ask about the reason for arrears.
How do I serve a s8 Notice?
Name all current tenants (those listed on your tenancy agreement) in your notice, even if some have left. It’s a good idea to provide a separate notice for each individual tenant. Always include the tenancy address and also, in multi-occupied tenancies, the room number.
How Should I Serve the Notice?
The key thing is, you must have documentary evidence of service and the method of service must be correct. Methods of service are usually specified in the tenancy agreement so make sure your method complies.
The best method is delivery in person and getting the tenant/s to sign a copy of the notice to be retained as a receipt. Alternatively, a reliable witness seeing you hand deliver or delivery through the letter box should suffice. They should be prepared to sign a witness statement and if necessary appear in court.
First class post is a recognised method, but this should be specified in the tenancy agreement and you need proof of postage from the post office. Do not send recorded delivery as the tenant may not be present or refuse to sign, in which case the notice will be returned. Include a receipt for the tenant to return as well.
Always send a copy of the notice to any guarantors.
How will the Process Take?
Once served you should wait for the notice expiry date before applying to the local court nearest to the rental property, or you can now apply on-line. Don’t jump the gun, so always allow a couple of extra days (plus 2 more if you posted the notice) to be certain – add 14 days plus to the date of service of the notice. It will usually take around 6 weeks to get a court hearing, unless the court is particularly busy.
Completing the S8 Notice
Make sure you have a valid and up-to-date section 8 notice. You will need to make at least 3 copies – one for the tenant, one for the court and one to retain.
Make sure the tenant/s’ names and rental address are correct and exactly as they appear on the tenancy agreement.
List ALL the grounds on which possession is being sought and use the EXACT WORDING stated in the Housing Acts. For example, a rent arrears claim usually includes ground 8, 10 and 11.
You should give concise details of the reasons why you are relying on each ground cited. When the claim is for rent arrears, make sure you attach an up-to-date schedule of rent payments and copies of your reminder letters.
Applying to Court
You will use County Court Forms N5 & N119 – http://www.justice.gov.uk/courts/procedure-rules/civil/forms
Form N5 Claim form for Possession of Property – two pages. Complete one copy for the court and one for each defendant, keeping a copy for yourself. All details as per the tenancy agreement.
Form N119 Particulars of claim for Possession – four pages. Complete one copy for the court and one for each defendant, keeping a copy for yourself. Give reasons for seeking possession in a detailed but concise manner.
State the grounds on which you seek possession exactly as per the 1988 Housing Act – schedule 2. Give details of any rent arrears to-date. Any additional arrears by the hearing date plus interest can be calculated and added by the judge if an award is made.
Note: A demotion order applies to social tenants only, so private landlords can ignore this. The demoted tenancy, introduced by the Anti-Social Behaviour Act 2003, enables Local authorities and housing trusts to deal more effectively with anti-social behaviour. It instigates a two-stage regime entitling such landlords to apply to demote an otherwise secure tenancy; and then, during this demoted period, the landlord may seek possession of the property as of right (provided it follows the statutory procedure.)
Once completed, take the forms with copies of the supporting evidence and the correct court fee to the local county court nearest to the rental property. Make sure the court administrators confirm the forms and fee are correct.
Once accepted the court administrators should prepare a Notice of Issue (Form N206) which will give a Case Reference Number and a hearing date. This should be sometime between 4 and 8 weeks away.
You should be notified by letter once the court has sent off the summons to your tenant/s, which will contain copies of all the relevant documents.
The defendant (tenant) then has 14 days to respond.
Attending the Court Hearing
Always attend the hearing promptly. Dress appropriately and state your case clearly and concisely in a professional manner when asked to do so. Treat the court staff, the judge and the defendant/s with respect and do not respond to personal attacks or accusations from the defendant/s – stick to the facts.
Determination (the Judgement Options
As many of the grounds for possession are discretionary (or qualified mandatory), the judge has a range of judgements to use, depending on the circumstances.
- Proceeding Dismissed – If notices have been served or completed or the submission lacks supporting documentation it is possible the case will be summarily dismissed. This would leave the defendant tenant in a position to claim costs against the landlord claimant.
- Summary Judgement – where the defendant offers no defence or where the defence has no credibility and will obviously fail, given all the circumstances of the case, it is possible the judge can save the cost of a trial by determining the case (issuing judgement) without a full hearing.
- Adjournment – The court may decide that further evidence is needed (for example a professional report) especially where the defendant counterclaims, or in the circumstances the breach of contract is not serious enough to justify the grant of a possession order. The hearing may be adjourned to later date, subject to specified conditions.
- Possession Order – A possession order will be made and a warrant for possession issued where the judge is satisfied with the landlord’s case and has discounted any defence or counter claim. This will give the tenant a limited amount of time to leave, failing which he/she will be evicted by the court bailiffs on application by the landlord. The court will usually make an order for possession 14 days after the hearing but has discretion, in cases of exceptional hardship, to delay for up to 42 days.
- Suspended Possession Order – Judges tend to sympathise with tenants in rent arrears if they can make a credible argument for their predicament. Where the tenant agrees to pay off the arrears over a period the judge may make an order for possession which is suspended for a period to give the tenant time to pay and make up the arrears. If the tenant fails to comply the landlord would have to re-apply to the court to have the order made absolute. But there’s not guarantee the court won’t give the tenant a second chance.
Counter-claims and Costs
Most counter claims are made on grounds of disrepair or harassment. The tenant may claim to informed the landlord about defects which have not been dealt with or that harassment has taken place. Landlords should be prepared for this eventuality in court and have evidence to disprove: correspondence to show that the tenant/s has been asked about repairs and the reasons for arrears, plus the landlord should avoid all personal contact when in dispute, or at least have a witness present.
Counterclaims can involve additional legal costs for both claimant and defendant and ultimately the court decides which party pays them – usually the losing side. Once the process has started it is not possible to for one party to end them without paying the legal costs of the other side. Tenants sometimes have legal aide, so cost is not an issue to them.
Grounds for Possession and Notices – More Articles and links for this Section:
- Section 21 Notice
- Section 8 Notice
- Housing Act 1988 – http://www.legislation.gov.uk/ukpga/1988/50/contents
- Housing Act 1996 – http://www.legislation.gov.uk/ukpga/1996/52/contents
- Schedule 2 – 1988 Act – http://www.legislation.gov.uk/ukpga/1988/50/schedule/2
- Forms – http://www.justice.gov.uk/courts/procedure-rules/civil/forms
- LandlordZONE FREE Document Downloads – https://www.landlordzone.co.uk/agreements.htm
By Tom Entwistle
©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.