Section 8 or 21 – My tenant has not paid me any rent for 7 weeks and I’m considering taking him to court. Should I use section 8 or section 21?
Rent arrears is an increasingly common dilemma for landlords during the recession.
First you should contact the tenant and ideally co-operate as much as possible by assisting with a Housing Benefit claim or by re-scheduling rent payments. But tenants in arrears often refuse to cooperate.
Section 21 involves the serving of a notice (minimum 2 months) which becomes effective after the last day of the fixed-term so long as this is 6 months or more – you can then go to court for a mandatory possession order if the tenant does not leave when your notice period is up.
The notice can be served at any time during the fixed-term, even immediately after the lease is signed. Bear in mind though, if you take a deposit, it must be served after the deposit has been protected and the deposit notice (s213 notice) has been served on the tenants.
The advantage of s21 is it gives mandatory possession – the court has no leeway to defer a possession order, providing all the paperwork – tenancy agreement, s21 notice and tenancy deposit documentation is in order. What’s more, the accelerated procedure means that normally you don’t go to court.
Section 8 involves a short notice (usually 2 weeks) and is based on 17 grounds for possession, some being mandatory and some discretionary – but none give the certainty of possession as does the section 21 route. You can however link a money claim to the action, which you cannot do with s21
In practice, at the first sign of arrears, you should serve, along with your arrears letter and rent schedule, both s8 and s21 notices. Your s8 notice should cite grounds 8, 10 and 11. (See the LandlordZONE documents section for letters and notices downloads)
You can use only one route in court, so you need to decide whether you wait for the end of the fixed-term to use the certainty of s21, and go for a money claim after you have gained possession, or you go during the fixed term on s8.
If trouble comes early in the fixed term s8 is probably your best option, with mandatory possession if more than 2 months in arrears. However, if say a 6 month tenancy is past half-way, then s21 is preferable.
Once you start one route you may not be able to cancel it without paying the tenant’s (defendants) legal costs, if they have hired a solicitor.
If you are prepared to do some homework – read up on the rules – and spend some time getting the paperwork spot-on – courts reject on the slightest errors – you can do it yourself. Otherwise you need to use an eviction specialist such as Landlord Action, or a good property solicitor.
– Agreement & Forms – Section 21 Notices and Notes on Serving
– What is a Section 21 Notice?
– Expiry of a Section 21 Notice
– Section 8 Notices
– Section 8 Procedure
– Gaining possession of a privately rented property let on an assured shorthold tenancy
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.