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Back to Basics – Section 8

One route to obtaining possession of a property is by serving the tenant with a Section 8 notice pursuant to the Housing Act 1988. A section 8 notice has to be served in the prescribed form (Form 3) and can be issued to tenants that are either on an Assured Shorthold or fully Assured tenancy.

In order to serve a Section 8 notice you must be able to rely on at least one of the grounds set out inSchedule 2 of the Housing Act 1988.

Schedule 2 lists 20 grounds which can be cited as a reason for possession – 9 mandatory and 11 discretionary grounds. There will shortly be a tenth mandatory ground added when the Immigration Act 2016 comes into force in December.

Mandatory grounds tend to be more useful as the landlord has an absolute right to possession as long as the ground is made out but where there is sole reliance on discretionary grounds then the judge has to decide whether possession should be awarded given the circumstances of each individual case.

Advantages of using a Section 8 notice:
– Can be served during the fixed term;
– When serving a section 8 for rental arrears (Ground 8, 10 and 11) or a    breach of tenancy (Ground 12) the notice period is only 2 weeks (plus days    for service); and
– The shelf life of a section 8 notice is a year from the date it is served.

Disadvantages of using a Section 8 notice
– To rely on one of the 20 grounds you must be able to provide some    evidence before the court;
– Section 8 notices can be unpredictable. If you are not relying on a    mandatory ground, the court has discretion whether to award a Possession    Order and awards will be made on the merits of each case;
– If your section 8 notice is for a breach of tenancy and that breach is    remedied within the notice period then the notice can no longer be relied    upon to issue proceedings;
– Some grounds within Schedule 2 require a longer notice period which can be    confusing – so always check!

If in doubt it is always better to get advice at an early stage. It is better to get the notice right first time rather than to find out later that it is no good.

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