Over the Christmas period we received a few calls about how to complete a Section 8 and 21 notice and how to gain possession once the notice has expired. Consequently, we will write 3 blog posts on:
- how to complete a section 8;
- how to complete a section 21; and
- how to gain possession on the expiry of the notice.
Where a landlord needs to obtain possession of a property during the term of the assured or assured shorthold tenancy under the Housing Act 1988 they will need to do so by serving a section 8 notice. Section 8 notices are often considered fault based notices, that is that the tenant has breached some term of the tenancy and because of that breach the landlord now seeks possession. However, they are also used to recover possession for several other reasons.
The section 8 should clearly state the tenant(s) name, the address of the rental property and the landlord’s name. Minor clerical errors do not usually invalidate the notice if it is reasonably clear who the notice is for. The notice should then clearly state on what ground(s) possession is sought.
The Housing Act 1988 provides 20 grounds on which the landlord may rely on when seeking possession. The most common reason for landlords seeking possession and issuing a section 8 notice is rent arrears which is provided for by grounds 8, 10 and 11. Other grounds include, but are not limited to, are:
- Ground 1 – the landlord has previously lived in the property and wants it back, or the landlord has not acquired the property during the tenancy and wishes to reside in the property as his or her main home.
- Ground 7B – one or more of the tenants do not have the Right to Rent;
- Ground 12 – the tenant has breached some term of their tenancy agreement; and
- Ground 14 – The tenant or someone living with or visiting the tenant is causing or is likely to cause a nuisance to neighbours or visitors to the area, or has been convicted of using the property for immoral or illegal purposes, or has been convicted of an offence in the local area.
Most standard form section 8 notices are provided with the legal meaning of all 20 grounds set out within them. However, when serving a section 8 notice the ground or grounds that are being relied on by the landlord should be stated and the reasons for relying on them. So, for example where the landlord is serving the notice due to rent arrears, the notice should state ground 8, 10 and 11 along with the narrative for those grounds and include a schedule of the rent arrears. Where ground 12 is being relied on, again the narrative for the ground should be set out and the clause in the tenancy agreement which has been breached along with how it has been breached should also be set out.
While it is perfectly acceptable to serve a notice with all 20 grounds set out within it, the notice is not valid if you simply serve the notice with all 20 grounds and fail to state which grounds you are relying on and why. It is therefore, best practice to delete the grounds you do not need and leave the grounds you are relying on and state the reasons why you are relying on them clearly.
Grounds 1 – 8 of a section 8 are mandatory which means that if the landlord satisfies the court that the ground applies, then the court should issue the landlord with a possession order. The remaining grounds are discretionary, which means it is within the court’s discretion to issue the landlord with a possession order.
Some grounds for possession require the landlord to give the tenant notice prior to the start of the tenancy that those grounds may be relied on. In addition, not all grounds for possession apply to all types of Housing Act 1988 tenancies and some of them cannot be used during a fixed term tenancy such as ground 1.
Different section 8 grounds have different notice periods and it is important that you adhere to the notice periods to ensure that your notice is valid. As a rule of thumb where the ground you are relying on is fault based the notice period is usually 2 weeks with a few exceptions. Where the ground is not fault based, the notice period is usually 2 months.
So, where there are 2 months’ rent arrears a section 8 notice served on ground 8 (we also recommend including ground 10 and 11) requires 2 weeks’ notice from the date the tenant receives the notice. Where the landlord wishes to live in the property the section 8 notice on ground 1 will need to give the tenant 2 months’ notice from the date it is received. Where a notice is served relying on several different grounds which have different notice periods then it is important to bear in mind that the notice period of some grounds overrule the notice period of others.
Service of Notice
Notices must be signed and dated by the landlord or their agent. The notice should also include an expiry date which allows time for service of the notice on the tenant. Most good tenancy agreements include a clause which states that notices can be served on tenants by 1st class post. Where 1st class post is used, the notice is usually deemed served 2 working days after, subject to the clauses in the tenancy agreement. Where the tenancy agreement is silent on service the landlord or their agent should personally deliver the notice to the tenant and place it in their hand. The notice is then deemed served immediately. Where the property is occupied by more than one tenant whilst all their names must be on the section 8 notice, it is only good practice to serve a copy of the notice to each of them.
Once the notice has expired, if the tenant is still in occupation landlords will be required to obtain a possession order from the court before they can take back the property. This is because the expiry of the notice does not mean the end of the tenancy. Therefore, all the landlord’s obligations, including those relating to repairs, continue. Where the tenant does leave, landlords are of course free to take back possession and re-let.