The ins and outs of Section 8

Although sometimes taking a little longer, a section 21 provides no room for argument or maneuver, and guarantees you regaining possession of your property.

However, with more specific grounds for possession, and the option for rent arrears recovery, is it a risk worth taking?

I think Section 21 is simpler… if it ain’t broke, don’t fix it!

Times are changing though! On December 1st Scottish landlords will see the ‘no fault possession’ option of a section 21 removed, with the only option for regaining possession of a property to issue a possession order using an 18 point system, similar to the existing Section 8 (details of these changes can be found here) . The change has been introduced with a view to provide tenants with more security, with tenancies continuing indefinitely unless landlords invoke one of the 18 specific criteria to end them. Historically we have seen Scotland leading the way in rental legislation, so this new ruling could well schedule changes across the rest of the UK…

Whilst it can be tempting to issue a simple section 21, it could be wise to familiarise yourself with the fault-based system used for section 8 possessions, as it is possible that if successful in Scotland, it might not be long before we see this system spread across the UK.

Refresh my memory. How are section 8 and section 21 different?

• One major difference, is that the section 8 should be used if the tenant has breached one of more terms of their tenancy agreement and is therefore AT FAULT, a section 21 notice should be used if there are no breaches, but you, as the landlord simply require your property back – it is a NO FAULT notice.
• With a section 21 notice you are not able to claim back any monies that you are owed. A Section 8 notice can be used if a tenant has fallen into rent arrears, and can help you get back lost rent. A successful section 8 can give you both a possession and monies owed for arrears of rent without separate hearings.
• A section 8 notice is not guaranteed. Whilst a section 21 is guaranteed to end in a possession order, a section 8 notice might be overturned in court.
• A section 21 cannot be issued until the notice period and the fixed-term have expired, however a section 8 can be issued as soon as the notice period for the breach has expired. Breach notice periods range from no notice required to 2 months’ notice.

Am I guaranteed the result I want?

Not always.

If your tenant does not agree with the claims, they are able to launch a counter claim against you. This could be in relation to the standard of upkeep, maintenance or defects within the property, or they could claim that you have not issued the paperwork correctly. If you have failed to complete the paperwork correctly, there is a very high chance that the notice will not be valid.

Common errors include:

• Failing to include the tenants name on the notice
• Failing to include the property address on the notice
• Failing to include the details of the 'grounds for possession' (the you want your tenant to leave the property)
• The date the notice ends – this will vary depending on the ground that you are issuing the notice (see below)

If you are using a section 8 to recoup losses in rent from a tenant who has built up rent arrears, you might be hoping to be awarded a possession and a financial repayment. However, you may find yourself coming away from your hearing with neither if your tenant is savvy. In order to issue a section 8 for rent arrears, your tenant must owe 8 weeks’ worth of rent - if your tenant pays off any of the outstanding rent by the day of the hearing (so that there is less than 8 weeks’ worth outstanding) the section 8 order will not apply.

Should this happen, you could request a court to apply a suspended possession order on your tenant. This will introduce a payment plan, based upon their circumstances. For example, they may be ordered to pay the full rent plus an additional £100 a month until the arrears are paid off. This will result in two outcomes, with the landlord will receive all of the arrears, or the tenant will default on payments. In this instance, the suspended order becomes a live possession order, and the landlord can file a possession application with a bailiff. If the tenant is a repeat offender, the judge may grant on grounds of 10 and 11 alone.

How do I serve a section 8?

1. Identify the way in which your tenant has breached their tenancy agreement, and decide which of the 18 grounds best fit your situation

2. Complete a section 8 form: available here. Make sure to keep a copy of the document for your own records.

• Serve this to your tenant. You can serve a section 8 notice in the following ways:
• Serving in person with a witness: If you feel comfortable doing so, handing a copy of the notice to your tenant is a guaranteed way of being sure that they received a copy. Making sure that this is witnessed, and obtaining a witness statement is important as potential evidence in court.
• Serve at the property with a witness: If you are not comfortable issuing the notice in person, or your tenant will not open the door to you, you are able able to serve the notice to the property. Make sure you also have a witness for this, and obtain a full witness statement.
• Service by mail Take the document to a Post Office, where the counter staff can issue you with a certificate to prove that it has been posted, and on which date

Take a written statement from your witness stating that they saw 'X' delivering a Section 8/21 to the property, ensuring it is 'Signed as a Statement of Truth', with a signature and date. Your witness must be over 18, sober and mentally stable.

You must not serve the notice via email, as this is not a recognized form of serving a notice and could lead to your tenant denying that they received the notice.

3. The Section 8 notice is served to inform the tenant that there has been a breach of the tenancy. The notice informs the tenant of a breach and gives a period of time for them to remedy the situation. This time that they have to remedy this differs depending on the breach (for rent arrears it is 14 days, for illegal activity taking place in the property it is immediate with no notice), but as soon as the time is up you can begin court proceedings.

4. If your tenant hasn’t vacated the property on the date noted on the Section 8 notice, you will have to start a possession claim. This involves taking proceedings to court.

5. Court papers will be issued to you and your tenant, providing details of the claim and including any advice required by the court. Your tenant will have the opportunity to attend the possession hearing at court and defend the notice.

6. At a possession hearing, a judge will hear your case and either grant a possession order, issue a suspended possession order, or set the notice aside. If you are granted a possession order, your tenants will be given a date to vacate, and if they fail to do so by this date you are able to instruct bailiffs. You will be instructed of the result at the hearing, and by post.

Grounds in which a Section 8 notice can be issued

Grounds on which the court MUST order possession

Ground 1 - 2 months' notice

Not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground or the court is of the opinion that it is just and equitable to dispense with the requirement of notice and (in either case) –
(a) at some time before the beginning of the tenancy, the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them occupied the dwelling-house as his only or principal home; or
(b) the landlord who is seeking possession or, in the case of joint landlords seeking possession, at least one of them requires the dwelling-house as his or his spouse’s only or principal home and neither the landlord (or, in the case of joint landlords, any one of them) nor any other person who, as landlord, derived title under the landlord who gave the notice mentioned above acquired the reversion on the tenancy for money or money’s worth

Ground 2 – 2 months’ notice
Ground 2 The dwelling-house is subject to a mortgage granted before the beginning of the tenancy and –
(a) the mortgagee is entitled to exercise a power of sale conferred on him by the mortgage or by section 101 of the Law of Property Act 1925; and
(b) the mortgagee requires possession of the dwelling-house for the purpose of disposing of it with vacant possession in exercise of that power; and
(c) either notice was given as mentioned in Ground 1 above or the court is satisfied that it is just and equitable to dispense with the requirement of notice; and for the purpose of this ground “mortgage” includes a charge and “mortgagee” shall be construed accordingly.

Ground 3 – 2 weeks’ notice
The tenancy is a fixed term tenancy for a term not exceeding eight months and –
(a) not later than the beginning of the tenancy the landlord gave notice in writing to the tenant that possession might be recovered on this ground; and
(b) at some time within the period of twelve months ending with the beginning of the tenancy, the dwelling-house was occupied under a right to occupy it for a holiday.

Ground 6 – 2 months’ notice
The landlord who is seeking possession or, if that landlord is a registered social landlord or charitable housing trust, a superior landlord intends to demolish or reconstruct the whole or a substantial part of the dwelling-house or to carry out substantial works on the dwelling-house or any part thereof or any building of which it forms part and the following conditions are fulfilled –
(a) the intended work cannot reasonably be carried out without the tenant giving up possession of the dwelling-house because –
(i) the tenant is not willing to agree to such a variation of the terms of the tenancy as would give such access and other facilities as would permit the intended work to be carried out, or
(ii) the nature of the intended work is such that no such variation is practicable; or
(iii) the tenant is not willing to accept an assured tenancy of such part only of the dwelling-house (in this sub-paragraph referred to as “the reduced part”) as would leave in the possession of his landlord so much of the dwelling-house as would be reasonable to enable the intended work to be carried out and, where appropriate, as would give such access and other facilities over the reduced part as would permit the intended work to be carried out, or
(iv) the nature of the intended work is such that such a tenancy is not practicable; and
(b) either the landlord seeking possession acquired his interest in the dwelling house before the grant of the tenancy or that interest was in existence at the time of that grant and neither that landlord (or, in the case of joint landlords, any of them) nor any other person who, alone or jointly with others, has acquired that interest since that time acquired it for money or money’s worth; and
(c) the assured tenancy on which the dwelling-house is let did not come into being by virtue of any provision of Schedule 1 to the Rent Act 1977, as amended by Part I of Schedule 4 to this Act or, as the case may be, section 4 of the Rent (Agriculture) Act 1976, as amended by Part II of that Schedule. For the purposes of this ground, if, immediately before the grant of the tenancy, the tenant to whom it was granted, or if it was granted to joint tenants, any of them was the tenant or one of the joint tenants of the dwelling-house concerned under an earlier assured tenancy or, as the case may be, under a tenancy to which Schedule 10 to the Local Government and Housing Act 1989 applied, any reference in paragraph (b) above to the grant of the tenancy is a reference to the grant of that earlier assured tenancy or, as the case may be, to the grant of the tenancy to which the said Schedule 10 applied. For the purposes of this ground “registered social landlord” has the same meaning as in the Housing Act 1985 (see section 5(4) and (5) of that Act) and “charitable housing trust” means a housing trust, within the meaning of the Housing Associations Act 1985, which is a charity, within the meaning of the Charities Act 1993.

Ground 7 – 2 months
The tenancy is a periodic tenancy (including a statutory periodic tenancy) which has devolved under the will or intestacy of the former tenant and the proceedings for the recovery of possession are begun not later than twelve months after the death of the former tenant or, if the court so directs, after the date on which, in the opinion of the court, the landlord or, in the case of joint landlords, any one of them became aware of the former tenant’s death.
For the purposes of this ground, the acceptance by the landlord of rent from a new tenant after the death of the former tenant shall not be regarded as creating a new periodic tenancy, unless the landlord agrees in writing to a change (as compared with the tenancy before the death) in the amount of rent, the period of the tenancy, the premises which are let or any other term of the tenancy

Ground 8 – 2 weeks’ notice
Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing –
(a) if rent is payable weekly or fortnightly, at least eight weeks rent is unpaid;
(b) if rent is payable monthly, at least two months rent is unpaid;
(c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and
(d) if rent is payable yearly, at least three months’ rent is more than three months in arrears; And for the purpose of this ground “rent” means rent lawfully due from the tenant.

Grounds on which the court may order possession

Ground 9 – 2 months’ notice
Suitable alternative accommodation is available for the tenant or will be available for him when the order for possession takes effect

Ground 10 – 2 weeks’ notice
Some rent lawfully due from the tenant –
(a) is unpaid on the date on which the proceedings for possession are begun; and
(b) except where subsection (1)(b) of section 8 of this Act applies, was in arrears at the date of the service of the notice under that section relating to those proceedings.

Ground 11 – 2 weeks’ notice
Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent which has become lawfully due.

Ground 12 -2 weeks’ notice
Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed.

Ground 13 – 2 weeks’ notice
The condition of the dwelling-house or any of the common parts has deteriorated owing to acts of waste by, or neglect or default of, the tenant or any other person residing in the dwelling-house and, in the case of an act of waste by, or the neglect or default of, a person lodging with the tenant or a subtenant of his, the tenant has not taken such steps as he ought reasonably to have taken for the removal of the lodger or sub-tenant.
For the purposes of this ground, “common parts”, means any part of a building comprising the dwelling-house and any other premises which the tenant is entitled under the terms of the tenancy to use in common with the occupiers of other dwelling-houses in which the landlord has an estate or interest.

Ground 14 – No notice required
The tenant or a person residing in or visiting the dwelling-house-
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of –
(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii) an arrestable offence committed in, or in the locality of, the dwelling-house.

Ground 15 – 2 weeks’ notice
The condition of any furniture provided for use under the tenancy has, in the opinion of the court, deteriorated owing to ill-treatment by the tenant or any other person residing in the dwelling-house and, in the case of ill-treatment by a person lodging with the tenant or by a sub-tenant of his, the tenant has not taken such steps as he ought reasonably to have taken for the removal of the lodger or sub-tenant.

Ground 16 – 2 months’ notice
The dwelling-house was let to the tenant in consequence of his employment by the landlord seeking possession or a previous landlord under the tenancy and the tenant has ceased to be in that employment. For the purposes of this ground, at a time when the landlord is or was the Secretary of State, employment by a health service body, as defined in section 60(7) of the National Health Service and Community Care Act 1990, shall be regarded as employment by the Secretary of State

Ground 17 – 2 weeks’ notice
The tenant is the person, or one of the persons, to whom the tenancy was granted and the landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by –
(a) the tenant, or
(b) a person acting at the tenant’s instigation