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When it comes to evicting tenants, one of the most common questions asked when serving an eviction notice to tenants is: what is the difference between a Section 8 (s8) and Section 21 (s21) notice, and which one should I serve to my tenant?
Both notices are used to evict tenants, but they each serve their own purpose, so it’s important to use the correct notice to avoid unnecessary delays and expenses.
Disclaimer: I’m no legal boffin, so you should talk to a qualified professional if you require any legal advice. However, I will quickly go over the basic differences between the two types of eviction notices from my understanding. Hopefully I’ll cover enough of the basics to help you identify which eviction notice is most suitable for your circumstances.
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 (i.e. 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- Eviction Notice and you can download a Section 8 notice from here.
A section 21, also known as a ‘Notice of Possession’, should be served to end a an assured shorthold Tenancy Agreement so the landlord can regain possession on the last day of the fixed term of the tenancy or afterwards during 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 and you can download a Section 21 notice from here.
A Section 8 should be served when a tenant has done something wrong (breached the terms of the tenancy) 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!
Here’s a bit of a personal tip, something which I’ve learned through experience.
While I have said that you should serve a section 8 notice when a tenant is in breach of contract (i.e. when the landlord has grounds for possession), there is, as always, an exception, in which you might be better of 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 compared to a Section 8. 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 as long as the fixed term is coming to an end, or in a periodic tenancy. Even if the tenant refuses to vacate after a section 21 is served, providing the court is satisfied that it has been correctly served- they will grant the landlord possession.
Fair warning though, before serving a Section 21, it’s crucial to ensure you have complied with the latest Section 21 legislation, which will enable you to serve a valid notice. You can check over at the Section 21 blog post. If you haven’t complied properly, your only option might be to serve a Section 8 notice.
They are completely separate notices
It’s important to note that both S21 and S8 notices are completely separate from one another. You can serve both at the same time (if it’s appropriate) and they won’t have any conflicting issues. You don’t need to cancel one before serving the other, they are totally separate mechanisms, serving different purposes.
Does anyone else have anything else to add? :)
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Disclaimer: I'm just a landlord blogger; I'm 100% not qualified to give legal or financial advice. I'm a doofus. Any information I share is my unqualified opinion, and should never be construed as professional legal or financial advice. You should definitely get advice from a qualified professional for any legal or financial matters. For more information, please read my full disclaimer.
Thanks all for useful comments/questions. My problem is that I have this tenant who currently owes me close to £3000 arrears. My estate agent put the wrong date on in the original Section 21 notice served as a result of which the application was thrown out. I have been advised to issue a fresh one. The problem is that the tenant has remain elusive. He is never at the address, does not answer to my phone calls and even when he agrees to a meeting, he would not turn up. It is therefore impossible to get him to sign the Section 21 notice. How do I solve this problem? Must the notice be signed by him? How else can I legally issue him the notice?
Secondly, I have since learned that he does stay at the address (my property). Instead, his friend who he quoted as guarantor is the one living there. How do I get both out. The 12 month contract has recently expired.
Lastly, the postcode on the first page of the tenancy agreement is wrong (N9 instead of N18). Is this a serious error that could invalidate an application for possession?
Thanks for your response.