Q.What is a Section 8 notice?
A. It refers to provisions of the Assured Shorthold Tenancy—the default tenancy for most dwellings in England and Wales, under the terms of the Housing Act of 1988 and (revised) of 1996.
If the tenant has breached the tenancy agreement (e.g., rent arrears) and you want to recover the arrears as well as possession, consider using a Section 8 Notice. It must specify the Grounds and state why you require possession.
There are 17 Grounds a landlord may select from. The most common are:
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Ground 8: The tenant owed at least two months rent (in the case of a monthly tenancy) when the landlord served notice that he wanted possession, and still owes two months' rent at the date of the court hearing. If the rent is payable weekly, there must be rent arrears of at least eight weeks; if payable quarterly, of at least three months; and if payable yearly, of at least six months.
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Ground 10: The tenant was behind with his rent when the landlord served notice and also when he began court proceedings.
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Ground 11: Even if the tenant was not behind with the rent when the landlord started proceedings, he had been persistently behind with the rent.
Of the above,Ground 8 is a mandatory ground and the most powerful to use. If this Ground is proved, the court must grant possession.
However, if you rely on this Ground alone, the tenant can pay off part of the arrears right before the hearing. If that occurs, the Ground can no longer be proved, and the possession proceedings will have to be abandoned.
Therefore, it’s better to cite multiple Grounds of possession (e.g., Grounds 8, 10 and 11) for rent arrears, if they apply. However, it may not be possible to rely on Ground 8 if the rent arrears have not accrued to a sufficient extent when the notice was served. If this is the case, then—due to insufficient arrears—the landlord will have to decide whether to start the proceedings under the discretionary Grounds 10 and 11 (where the court may order possession only if it’s “reasonable” to do so), or to incur a further delay until mandatory Ground 8 applies.
In short: It’s advisable to wait until at least two months' rent (or eight weeks if it’s a weekly tenancy) is unpaid before issuing a Section 8 Notice, to increase the chances of successfully obtaining the possession order. However, in many cases of rent default, some landlords have been successful in relying on Grounds 10 and 11 alone.
After serving the notice for rent arrears, under Grounds 8, 10 or 11, there is a 14-day waiting period before you can begin possession proceedings through the County Court. Also, the court will require that the landlord, or the landlord’s agent, is able to show adequate evidence of the alleged default before it will order the tenant to move out of his rented home.
Q. What other Grounds might be used under Section 8?
A.One or more of the following four Grounds may be used if there has been misconduct by the tenant other than rent arrears:
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Ground 12: The tenant has broken one or more of his obligations under the tenancy agreement. You’d need to quote the appropriate clause(s) in the lease.
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Ground 13: The condition of the premises or any common part has deteriorated due to the behaviour of the tenant, his sub-tenant, or anyone else living with the tenant. It might also be applied to detrimental actions by a pet or a visitor.
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Ground 14: The tenant, a sub-tenant or a visitor has been guilty of conduct which has caused, or is likely to cause, a nuisance or annoyance to the neighbours, or has been convicted of using the property, or allowing it to be used, for immoral or illegal purposes, or has committed an arrestable offence in or near the dwelling. To help prevent further annoyance, this Ground allows you to apply to the court for possession right after you have served the notice, without any waiting period.
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Ground 15: The condition of the furniture, fixtures, cabinets or other property in the dwelling has deteriorated, because it has been ill-treated by the tenant, his sub-tenant, or someone else living there or visiting there.
Note: There are some exceptions set out in the Housing Act 1988 which exclude a tenancy from being an Assured Shorthold Tenancy. Such as: The rent is greater than £25,000 per year, the landlord is living in the same building as the tenant, none of the tenants occupying the property use it as a principal home, the tenant is not an individual (e.g., it’s a limited company), or the landlord is a local council.
Q. Are there other mandatory Grounds that may be used under Section 8?
A.Yes. The Act provides for possession to be granted for any of these reasons, which relate to prior notice (e.g., they’re stated in the lease):
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Ground 1: The landlord formerly lived in, or intends to live in, the property as his only or principal home.
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Ground 2: The mortgage holder is claiming possession. But this can only be used if the mortgage predates the tenancy.
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Ground 3: The tenancy is a holiday let, and it was previously let only for a holiday.
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Ground 4: The tenancy is a student let, and it was previously let by an educational establishment only to students.
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Ground 5: The property is held for use by a minister of religion.
For any of the above Grounds to be mandatory, a court will generally require that the landlord has served notice of the respective Ground on the tenant prior to, or at the beginning of, the tenancy. The basis of the notice cannot come as a surprise to the tenant. However, for Ground 1 or Ground 2, a court has the discretion to dispense with this prior notice, if it considers it just and equitable to do so.
Q. Are there still other Grounds that might be used?
A.Yes, as follows:
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Ground 6: The landlord intends to redevelop the property. If proved, this is a mandatory Ground.
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Ground 7: The tenant has died (unless there is a person with a right to succeed). It’s a mandatory Ground.
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Ground 9: Suitable alternative accommodation is available. It’s a discretionary Ground.
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Ground 16: The tenant was granted use of the property in order to fulfill his or her employment duties, but is no longer employed by the landlord. It’s a discretionary Ground.
- Ground 17: The landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant or someone acting at his instigation.
Q.What is a Section 21 Notice?
A. Like a Section 8 Notice, it refers to provisions of the Assured Shorthold Tenancy— the default tenancy for most dwellings in England and Wales, under the terms of the Housing Act of 1988 and (revised) of 1996.
The landlord has the right to terminate the tenancy by using a Section 21 Notice, except during the first six months, and the tenant is given two months to move out if a court so rules. Most often, the default is due to rent arrears, but there may be other suitable Grounds.
If the tenancy is an Assured Shorthold Tenancy, and you require possession at the end of the tenancy and the tenant does not have rent arrears—or has rent arrears, but you do not want to claim them and want possession quickly—then consider using a Section 21 Notice, if Section 8 is not applicable.