Landlord Products / Services
Ahh, the dark world of tenant eviction notices!
Sounds brutal, but actually, not always.
Eviction notices get a bad wrap across the board, but what many people don’t realise is that a notice to terminate a tenancy is often a perfectly normal and amicable affair. Landlords have to serve notice even if they wish to terminate a tenancy after the tenancy fixed term has expired – tenancies don’t just automatically terminate after the fixed term expires.
When it comes to evicting tenants, one of the most common questions asked 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 ultimately used to terminate a tenancy and regain possession of a property, but they perform different functions and have different legal implications, so it’s important to use the correct notice to avoid any unnecessary delays and expenses.
Disclaimer: I’m no legal chap, 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. 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?
Section 8 – eviction notice
A section 8 notice should be served when a tenant is in breach of the tenancy terms and therefore the landlord has grounds for eviction. The most common ground is, surprise, surprise… rent arrears. If a tenant is 2 months in rent arrears, then the landlord has the grounds to serve a Section 8 notice. In more serious cases, for example, if the tenant is using the premises for illegal purposes, it’s possible to serve notice in as little as 2 weeks. The minimum notice period will depend on which ground(s) is breached by the tenant.
As long as the landlord has a legitimate ground(s) for possession, a section 8 notice can be served, even during the fixed term of the tenancy.
Here’s a more detailed look at Section 8- Eviction Notice, including an overview of the grounds for eviction and more details on where you can download a template for your use.
Section 21 – notice of Possession
A section 21 notice, also known as a ‘Notice of Possession’, should be served by landlords when they wish to regain possession of the property at the end of the fixed term or at the end of the periodic term.
Unlike with serving a section 8, a landlord does not need a reason for serving the notice in order to regain possession of the property – it is what is known as a “no fault” repossession procedure. In other words, a section 21 notice can be served even when a tenant has not breached any terms of the tenancy, but rather, the landlord would simply like their property back at the end of the fixed term (for whatever reason).
Here’s a more detailed look at Section 21 – Notice of Possession Order Form, including where you can download a template to use.
A Section 8 should be served when a tenant has 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 (for whatever reason, it doesn’t matter) at the end of the fixed or periodic term.
Sometimes it’s easier to serve a Section 21, even when a tenant has breached the terms of their contract!
While a Section 8 notice is only used when a tenant is in breach of terms, there is, as always, an exception, in which there is a case for serving a section 21 notice instead – even though there has been a breach.
If a landlord has valid grounds for serving a section 8 notice, and the current term of the tenancy has either rolled into a Periodic Tenancy or approaching the end of the fixed term, it’s often more effective to serve a Section 21 instead.
The reason for this is that there are significantly less legal implications when serving a section 21 compared to a Section 8. As said, when serving a Section 8, a ground for possession is required, but the problem is that the ground can be disputed by the tenant. So if the tenant wishes to ignore the Section 8 eviction notice and fight their case in court, the landlord will need to prove the tenant has breached the terms of the tenancy. During this time, the tenant will be entitled to remain in the property. In short, it can be a long and tedious process if the tenant wants it to be.
Whereas with a section 21, a landlord does not need to justify or a reason for regaining possession at the end of the term – it’s a “no fault” possession notice. So if the tenant refuses to vacate after a valid section 21 is served, it’s usually relatively easy to get an eviction order via an Accelerated Possession Procedure without the need to attend court.
Fair warning though, before serving a Section 21, it’s crucial to ensure you have complied with the latest Section 21 legislation. Failing to do so will invalidate any claims under Section 21. You can check my detailed blog post to see what is required by the latest Section 21 legislation. If you haven’t complied with all the requirements, your only option to get rid of a rogue tenant 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. They can be served at the same time (if it’s appropriate) and there won’t be any conflicts. You don’t need to cancel one before serving the other, they are totally separate mechanisms, serving different purposes.
Still confused – want some free legal advice and/or someone to handle the notices for you?
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Hopefully I’ve made the differences between the two eviction notices clear enough. However, if you have any further questions (that can’t be classed as “legal advice”), feel free to drop a comment below.
Landlord out xo
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.