Difference Between Section 8 And Section 21 Notice

Written by on 25 Nov 2011

This is probably the most common question I see being asked in regards to serving notices to tenants- what is the difference between a Section 8 and Section 21 notice form, and which one should I serve to my tenant? Both forms are used to serve notice to tenants, but they’re distinctly different, and it’s important to serve the correct notice to avoid unnecessary delays and expenses.

I’m no legal bod, but I will quickly go over the basic differences. Hopefully I’ll cover enough of the basics to help you identify which one you should be serving to your tenant.

What is the difference between a Section 8 and Section 21?

Simply, a section 8 notice should be served when a tenant is in breach of contract (e.g. the landlord has grounds for possession). The most common ground for eviction is rent arrears. As long as the landlord has a legitimate ground for possession, he/she can serve the notice at any point during a tenancy. Here’s a more detailed look into Section 8- Notice To Quit Form

A section 21, also known as a ‘Notice of Possession’, should be served to end a Tenancy Agreement so the landlord can regain possession at either the end of the fixed date specified in the tenancy agreement, or if the tenancy has rolled into a periodic tenancy. Unlike when serving a section 8, a landlord does not any reason for serving the notice to regain possession of the property, other than he/she simply wants the tenant to vacate. Here’s a more detailed look into Section 21 – Notice of Possession Order Form.

So basically, a Section 8 should be served when a tenant has done something wrong e.g. fallen into rent arrears. A Section 21 should be served when the landlord simply wants the tenant to vacate the property at the end of the tenancy or during a periodic tenancy.

Some times it’s better to serve a Section 21, even when a tenant has breached their contract

This is a bit of personal tip, something which I’ve learned from experience. While I have said that you should serve a section 8 notice when a tenant is in breach of contract (e.g. the landlord has grounds for possession), there is, as always, an exception, in which it might be worth serving a section 21 notice instead.

If you have valid grounds for serving a section 8 notice, and the current term of the tenancy has either rolled into a Periodic Tenancy or with in or close to 2 months of the tenancy from reaching it’s end date, it’s probably better to serve a Section 21 instead.

The reason for this is because there is a lot less legal hassle and implications when serving a section 21. As said, when serving a Section 8, a ground for possession is required, which can be disputed by the tenant in court, which may prolong the eviction process, and consequently allow the tenant to remain in the property. The landlord will also need to prove to the court that the tenant has breached a condition in the agreement. Whereas with a section 21, as mentioned, a landlord does not need any reason for regaining possession. Even if the tenant refuses to vacate after a section 21 is served, providing the court is satisfied that it has been correctly served; then they are required to grant the landlord possession.

Does anyone else have anything else to add? :)

33 Comments - join the conversation...

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YesAdam2011-11-25 15:34:14 Anything to add? Going to court is not as scary as it seems, just have all the FACTS to hand in bullet points, so if asked you have the answers.

Also theirs a website that not many landlord sites refer to in regards to Possession Claims here - https://www.possessionclaim.gov.uk/pcol/ to issue proceedings. 1
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Mr X2011-11-25 21:05:47 Just a quick one..

If a landlord is in rent arrears, say 2-3 months, would serving a section 21 notice allow the landlord to claim lost rent? I am under the understanding that the lost rent can only be claimed when serving a section 8 notice, is this correct? 2
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Benji2011-11-26 12:20:12 Mr X,
Sort of correct. Although you can serve a s21 then claim the lost rent separately (using money claim on line for example). Depends on individual circumstances which is best. 3
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Mr X2011-11-26 13:16:55 Cheers Benji.

I am assuming then that claiming the rent arrears within the section 8 is one of the implications the landlord was referring to, which delays the process, all the while, the tenant is still in the property.

If that is the case then yes I definitely agree. Serve a section 21 notice, get the tenant out, and then deal with the lost rent separately. 4
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John2011-11-26 16:30:16 A section 8 although easy to serve is a very hard notice to implement, as if it is issued for say non payment of rent and you go to court if the tenant then pays for example half the amount he/she owes the situation has now changed and the judge will throw the case out. There fore unless it is absolutely necessary i.e only a month into a 12 month AST I would always suggest using a section 21. In my opinion section 8's rarely work. 5
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Benji2011-11-27 11:19:25 Landlord,
"Does anyone else have anything else to add? :)"
Yeah, can you get back to doing the funny stuff involving sex toys, fridges, psycho tenants etc, cos that last article was just boring.

John,
I know what youre saying, s21s are easier.
However, when using s8 it is usual to state grounds 10 & 11 as well. Which is 'some' rent arrears (g10) and persistent late payment (g11). So even if the tenant does reduce the rent below 8 weeks/2 months, the judge will still consider a possession order.
If the tenant is a scumbag playing the system the judge will (usually) see thru it and award possession. If not the tenant will often be given a chance. Which is both fair and reasonable.

As for your opinion of s8 rarely working, its actually about a 65% success rate. Similar to using s21. 6
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John2011-11-28 09:40:56 Benji,
I agree with you, however I dislike the idea of relying on a Judge to decide whether someone is a scumbag or not!!lol

With regards the 65% success rate of a s21 as far as I am aware (by no means infallible)If issued correctly i.e.out of the fixed period etc. Then the judge has no choice but to award possession as you are ending the contract. 7
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The Landlord2011-11-28 10:28:37 @Mr X
As Benji said, you'll need to make a separate claim. However, if it's 2 months you're trying to claim, it might be worth recouping one month through the deposit, and cutting your losses with the 2nd month. That's what I would do anyways, purely because from my experience, it's so much hassle trying to get money out of people. The legal system can be beyond frustrating.

@Benji
I would love to produce blog posts like that all the time, but unfortunately it's out of hands. I rely on my tenants for their stupidity, and when they don't produce the goods, there's nothing I can do about it. But I like to think the more informative (boring, as you call it) blog posts will help someone... 8
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Benji2011-11-28 14:20:20 John,
Youre correct about the judge having no choice but to evict under a correctly served s21.
The failures come from incorrectly served ones for wrong dates, un protected deposits, incorrectly filled out N5B etc.

Landlord,
Sorry to be blunt, Ive not got the hang of conversing online and I talk as I would if we were in the pub.

At least it shows your not just making it up.

Re your tenants not producing the goods. Maybe its your fault for getting better at lanlording.
Hopefully theyll do some freaky shit over christmas. 9
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kate2011-12-02 00:14:05 so what if the arrears are less than 2months can you serve a s21 as that way you dont need to actually have reason where as a section 8 you would get anywhere?? 10
The Landlord Avatar
The Landlord2011-12-02 07:38:59 Hi Kate,

Well, you can't serve a valid Section 8 notice if your tenants are less than 2 months in arrears anyways. In order to serve a section 8 on the grounds of rent arrears, the tenant must be at least 2 months in arrears.

A Section 21 notice can be issued at any time during the fixed tenancy or during the periodic tenancy. But remember, a Section 21 is NOT an eviction notice, and serving one won't force the tenant to vacate any quicker than they are contracted until. A section 21 only informs the tenant you want the property back at the end of the fixed date in the tenancy agreement, providing it is served 2 months BEFORE the end fixed date. If it's not served 2 months before, then they are legally allowed to stay in the property 2 months after they receive the notice even if it exceeds the fixed end date in the tenancy agreement. If the tenancy has rolled into a periodic tenancy, the tenant will also require 2 months notice. 11
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John2011-12-02 11:23:13 Landlord,

I'm sorry to have to disagree with you but I believe according to the house act you will find that even if the tenancy has gone into a periodic state, the landlord is still required to provide 2 months notice to the tenant when using a section 21 notice.

The Question that I have always want to know is if you are issuing a section 21 in the last month of a fixed term A.S.T. Do you need to give a fixed term section 21 notice (because its still within the fixed term when issued) or a Periodic section 21 (because it the date they are required to move out the tenancy will have changed into a periodic)? (Answer that one if you can). 12
The Landlord Avatar
The Landlord2011-12-02 11:37:10 Ahh John, you're right. I actually knew that, I think I got confused in my haste this morning. I've corrected my comment! Appreciate it.

That's actually a good question, and i'm not actually 100% sure of the answer. However, I would assume you'd need to serve a fixed term section 21, because the tenant is still currently in the fixed term when the notice is served. But that's my guess. Perhaps someone else can shed some light on the issue for you! 13
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Benji2011-12-02 11:41:55 John,
You are correct, it is two months not one.

The answer to your question is not to state section 21 fixed, periodic, 4, a or anything else. You are only complicating the issue. Even if you get it right, the court may get it mixed up.

Under the Act, there is no specified 'prescribed' format. It must only be in writing and must require possession after a specified date (which cannot be sooner than 2 months). Keep it simple. 14
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kate2011-12-02 14:02:56 sorry if this is the wrong place. im new to the landlord side and have my first tenants..a couple with small child..only after a year the couple broke up leaving the woman and child she had to ask for dss help as she couldnt afford rent alone to which this i allowed she kept me informed bout it all and finally got payment (had to be backdated) now last couple months im struggling as dss is paid fornightly causing problems with my mortage repayments and got into arrears of around £400.. i got fed up and had letting agent serve her a s21. since this she has sorted dss to pay to me monthly and the part she pays herself when she gets paid so basically i get 2payments..shes got her arrears down to £220 and her notice is set to expire 13th dec but council have told her to stay put that i need a court order..can i take her to court for this ? would i be liable for costs or would she and also can i still evict her if she contines catching up on arrears. she wants to stay as its near xmas and is also 7months pregnant but i dont want to fall into problems again.any advice be appriecated. 15
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Ahmed2011-12-02 15:34:56 Hi, i am a tenant. I got my home with my partner at the time and after 1 yr our relationship has broken down. She refused to sign the second year tenancy and due to this, our tenancy has gone into periodical tenancy.
She is not contributing to the rent and this is now causing me financial problems. I have asked her to leave and i wanted to keep the property for myself and the kids (kids chose to stay with me ages: 15yrs and 16yrs).
Anyhow, i have explained all this to the landlord and he is happy for me to stay here and for her to leave. Problem is she refuses to leave and refuses to make contribution to the rent. She is basically living rent free and milking it while i have to cover it all.
So now i have asked the landlord to make the new tenancy on my name alone and he has done that. So now the current tenancy is on my name alone but she wont leave. What can be done to get her out of the property. I called the police and they say take her to court etc. Do i need to considering she is not on the current tenancy?
Initially she asked for a couple of months to save some money to get another place, but she has not done that and its now going into the third month. I feel she is not going to leave until forced to.
What are my rights? what can i do and what can't i do?
For example, when she is at work, could i just change the locks?

Any advice would be greatly appreciated. I just wanna move on and start fresh in this house with my kids.

Oh and to make things even worse for me, she has for the past 2 months had her new boyfriend over staying the night almost every day. This is causing me to feel uncomfortable in my own home also.

Lastly i dont want to leave the property and find somewhere else for me and the kids as its a nice property (probably wont find another as good in my price range) and ideally suited to both my kids school.
Looking forward to some good advice to end all this. 16
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John2011-12-02 16:26:06 Ahmed,

Benji is probably the best to answer this, however I will give it a go.
If your original tenancy was in both your names and went into a periodic state unless you gave notice and gave the landlord vacant possession of the property before you started your new tenancy, I believe your new tenancy is unlawful and would not stand up against the original in court.

The police will not get involved as this is a civil and not criminal matter, however if you change the locks you may find that it becomes a criminal matter and I mean with you in the dock. haha

I need to carry on with some work but will continue this later.... 17
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Ahmed2011-12-02 16:46:08 ok to make things even worse...
the original tenancy was in my partners name, and another couple of people who left the premises. I hadn't put my name on the tenancy for the 1st year. So after the 1st year ended, i called the landlord, told him to remove the two people who left from tenancy as they no longer live here. That was fine, I then asked that the 2nd year tenancy be put on my name and my partners name as we were the only two adults living in the house. I told my partner that i feel that if i was living in the house it would only be fair for me to have my name on the tenancy also so that i would have security from the tenancy agreement. It really should have been done right at the beginning but i never said anything about it at the time. So where do i go from here then?
I was the one who found the place, viewed the place and sorted everything out to get the place. In the eyes of the landlord, i was 1st point of call whenever he needed to contact us for any reason.
Things dont sound good.
Hope Benji and yourself could advise me how to proceed from here. 18
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AUS2011-12-03 09:26:53 Hi Ahmed,

Sounds like a nightmare.

I believe from the comments above that your 'old' tenancy agreement is actually the one that is lawful and not your new one. So essentially you are now on a periodic tenancy in the names of the other couple and your ex partner. Thats what it sounds like...anyway...just a thought and perhaps not the correct action but....what if the landlord of your property served notice (and it would have to be correctly addressed) to the other couple and your partner ? - this would seem to point you to all being evicted...which straight after on moving day a new tenancy could be issued in your sole name ....its a bit back handed and i am REALLY unsure of how lawful it is but it might just crack it. I think the key is establishing who are actually the lawfully named tenants first the fact that you are not on the original agreement might actually serve to protect you if you can use the backhanded approach.

I strongly suggest that you get in touch with the Citizens Advise Bureau (link below) about this issue as they will be able to connect you with lawyers and you may qualify for free legal advice too....

Good luck with everything and let us know on here how you go !

Best Regards
AUS
http://www.citizensadvice.org.uk/ 19
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AUS2011-12-03 09:28:43 P.s...I should have mentioned all of the above is going to need the co-operation of your landlord and he/she may not want to get dragged into your situation....it might be worthwhile looking for somewhere else to live just in case. 20
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Ahmed2011-12-03 14:20:43 Ok guys, thanks for your advice. I will speak to the landlord and see what we can do. Either way i gotta do it correctly and legally so it doesn't slap me back in the face. I will update when i know more.
Once again, thanks for the advice.Now i know where i stand.

If i have other questions i'll post them here as and when...
Thanks 21
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Cardifflandlord2011-12-06 18:35:38 Many people issue a section 21 notice at the start of a tenancy BUT remember that it cannot be signed on the same day as the signing of the tenancy because in theory the contract does not exist. You should serve the section 21 notice the day after.

Also two types of section 21 notice (one for AST & other for Stat periodic). Once you serve section 21 notice an accelerated posession form may be submitted at a letter assuming that you have served the correct notice with the correct dates etc. 22
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Benji2011-12-07 16:34:26 "Many people issue a section 21 notice at the start of a tenancy BUT remember that it cannot be signed on the same day as the signing of the tenancy because in theory the contract does not exist."

I disagree, a section 21 can be served on the same day as the AST signing. As long as it is served after the start of the tenancy it would be valid.
Happy to be proved wrong. 23
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John2011-12-07 18:09:54 I agree benji. 24
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Mr X2011-12-07 18:40:46 "I disagree, a section 21 can be served on the same day as the AST signing. As long as it is served after the start of the tenancy it would be valid"

.... and also as long as it is served after protecting the deposit, however I doubt many landlords register the deposit prior to signing the tenancy. 25
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John2011-12-07 18:54:28 Mr X,

I have never heard of what you are suggesting with regards notice being served only after protecting a deposit. Having read the housing act and deposit prescribed information many times and I cant say I have seen what your saying maybe you could quote a section and paragraph for us?(As I may have missed it) 26
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Benji2011-12-07 21:38:21 Mr X
What deposit? 27
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Mr X2011-12-07 23:54:45 It is in the Housing Act 2004. Section 215. Found a link here...

http://www.legislation.gov.uk/ukpga/2004/34/section/215

It basically means that if it goes to court, the judge may refuse your case if you have not protected the deposit 28
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John2011-12-08 09:37:28 Mr X,

I'm afraid you have failed to read or maybe just understand this section fully. in section 215, (1), b it states "or" the initial requirements of such a scheme (see section 213(4)) have not been complied with in relation to the deposit.
The initial requirement means that you have a set time period (amongst other stipulations) in which to send the deposit to the protection scheme. Which used to be 14 days , but has recently been upped to 30 days.

There fore I still fail to see why a section 21 cannot be issued with the tenancy at the beginning of the AST.

God I'm good! Jokes 29
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Mr X2011-12-08 10:36:51 “I learned much more from defeat than I ever learned from winning” - I stand corrected lol 30
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Benji2011-12-10 00:16:35 I agree John. 31
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Kazio2011-12-13 14:36:52 Agreed @ John. I didn't know they upped it though. 32
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Benji2011-12-13 23:38:07 'Agreed @ John. I didn't know they upped it though.'

They havent yet.
Comes in with the Localism Bill next year. 33

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