The information in this post applies to residential tenancies in England and Wales.
What is a Section 8?
A “section 8 notice”, also known as an ‘Eviction Notice’, is used to terminate an Assured Shorthold Tenancy Agreement during the fixed period when a tenant has breached the agreement (e.g fallen into rent arrears).
A landlord cannot legally evict their tenant without obtaining an order for possession from a court first. Before applying to the court for this order, the landlord must serve a “Section 8 notice to quit” form on the tenant. The notice states that the landlord intends to seek possession of the property and states the ground(s) on which possession is sought.
Before serving notice
Before serving a section 8 notice, I would recommend reading through the various methods available on how to terminate a tenancy agreement– there are several options available, and there might be a more suitable option for you. Section 8’s can often be one of the most aggressive and complicated approaches.
Section 8 Vs Section 21
Many landlords get confused between a Section 8 and Section 21 notice, and it’s understandable why. While you can serve both notices to one tenant at the same time, it’s important to understand the differences.
Essentially, a Section 8 is served when a landlord has grounds for eviction (e.g. rent arrears), consequently the landlord wishes to terminate the tenancy during the fixed term. A Section 21 is served to give ‘notice of possession’ to the tenant, which is when the landlord wants the property back at the end of the tenancy, which importantly means, it isn’t an eviction. Here is more information about a Section 21, notice of possession, you may always want to read more details on the difference between a Section 21 and a Section 8 notice.
It’s important to note that it might be more effective to serve a Section 21 in cases where the fixed term of a tenancy is coming to an end and there are grounds for eviction. The reason being is that a landlord is given possession by default when correctly serving a section 21- the tenant/Court cannot dispute it. Whereas if a Section 8 is served, and the tenant disputes the grounds for eviction, it could go either way, depending on if it goes to court and what evidence is given. Again, for more information on this, refer to the differences between a Section 21 and a Section 8 notice article.
Breach of agreement by tenant
The most common type of breach during the term of the tenancy is for non-payment of rent. However, any breaches of the terms of the tenancy agreement justify possession proceedings (e.g. damage to the property).
In order for the section 8 to be valid, the landlord must specify which grounds set out in Schedule 2 of the Housing Act 1988, the tenant has breached.
How to serve a Section 8 Notice
To start proceedings, you must first inform the tenant, using the section 8 notice, that you wish to seek possession. The Notice of Seeking Possession is issued under section 8 of the Housing Act 1988 and must be served in the prescribed form – ‘section 8’. The notice could be included with a final rent reminder letter.
Any errors made when issuing the section 8 notice (which is extremely common) is likely to delay the landlord gaining possession. That’s why it is always advised to seek legal advice before issuing a section 8.
Service of the Notice
The notice can be served by post or in person. If there is more than one tenant, the notice must be served on all tenants.
The courts will recognise the day of postal service as the day on which the letter would normally have arrived.
It is recommended that a colleague witnesses the sending of the notice. When using postal service, it is recommended that the notice be sent by recorded delivery for proof of delivery, and that a minimum of three working days is allowed for the notice to arrive.
The Grounds For Eviction
The ground you wish to evict your tenant on will need to be stated in the section 8 form.
These Grounds are contained in Schedule 2 HA 1988. The grounds fall into 2 categories:
- Grounds 1-8 (Mandatory) – the court must make the possession Order
- Grounds 9-17 (Discretionary) – the court will make the Order only if it is reasonable to do so.
Landlord(s) requires the property back for personal use in either of the following cases:
It’s important to note that this ground can only be used if the landlord gave notice at the start of the tenancy that they will be using this ground to regain possession.
The court has to look at all the circumstances, including hardship to the tenant or Landlord before deciding whether to make an order.
The property is subject to a mortgage which pre-dates the tenancy and the lendor wishes to exercise its rights over the property, i.e. repossess it. A notice under this ground must be served before the creation of the tenancy.
The tenancy is for a fixed period of not more than eight months and the property is occupied as a holiday let and at least twelve months before the tenancy started it had been used as a holiday let. Written notice must be given either before or at the time the tenancy begins that possession might be required under this ground.
The tenancy is for a fixed period of not more than twelve months and has been let by an educational establishment/institution (e.g. university, colleges etc.) and possession is required. Written notice must be given on or before the tenancy begins that possession might be required on this ground.
The property is used as a home for a Minister of Religion and is needed for another Minister of Religion. Written notice must have been given at the time or before the tenancy begins that possession might be required under this ground.
The Landlord intends to demolish or reconstruct the whole or part of the property or carry out major works to all or part of it and the works cannot be carried out if the tenant is there (e.g. because the tenant will not agree to give access or agree to be restricted to living in part of the property whilst works are carried out on the other part). The Landlord must pay the tenants reasonable removal expenses if the possession is granted under this ground.
Where the previous tenant has died and the new tenant is not entitled to “succeed” to the tenancy and the tenancy is a periodic tenancy which has passed to the new tenant on death or under a Will. The Landlord must bring proceedings within twelve months of the death of the tenant or twelve months of the date the Landlord became aware of the tenant’s death.
In order for possession to be ordered by the court, any one or more of the following five conditions contained within 7A must be met.
A court has found in relevant proceedings that the tenant, or a person residing in or visiting the dwelling-house, has breached a provision of an injunction under section 1 of the Anti-social Behaviour, Crime and Policing Act 2014 and:
The tenant, or a person residing in or visiting the dwelling-house, has been convicted of an offence under section 30 consisting of a breach of a provision of a criminal behaviour order prohibiting a person from doing anything described in the order, and the offence involved:
The tenant, or a person residing in or visiting the dwelling-house, has been convicted of an offence under;
At the date of service of the notice and at the date of the hearing, the tenant has not paid the rent, and either rent is payable weekly or fortnightly and at least eight weeks’ rent is unpaid; or rent is payable monthly and at least two months’ rent is unpaid; or rent is payable quarterly and at least one quarter’s rent is more than three months in arrears.
Note: When claiming possession under this ground, it is advisable to cite more than one ground since, if the tenant pays off part of the arrears shortly before the hearing, this ground can no longer be proved and possession proceedings will have to be abandoned. It is, therefore, common practice to cite more than one ground for rent arrears (i.e. grounds 8, 10 & 11), if applicable, and to also wait until at least two months’ rent (or eight weeks in the case of a weekly tenancy) is unpaid before issuing the Section 8 Notice.
That there will be suitable alternative accommodation available for the tenant if a Possession Order is made. The Landlord must pay the tenant’s reasonable removal expenses if a Possession Order is made. A tenant can oppose a Possession Order on this ground if the alternative accommodation is not suitable.
Any amount of rent is in arrears at the date of service of the notice and remains unpaid on the date on which the proceedings for possession are begun.
The tenant has repeatedly failed to pay rent.
The Tenant has breached any term of the tenancy agreement (other than one relating to the payment of rent).
The property has deteriorated due to neglect by the tenant or by someone living with him and the tenant has failed to remove that person.
The tenant or someone living with him has caused a nuisance to neighbours, visitors or others in the locality or has been convicted of using the property for immoral or illegal purposes or has been convicted of an indictable offence committed in the locality.
This ground is only open to registered social landlords or charitable housing trusts and can not be used by private landlords.
The property is occupied by a couple and one of them has left due to violence or threats of violence from the other partner or from a member of that partner’s family who was living in the property also. This notice can only be used by a registered social landlord or a charitable housing trust. The tenant who has left must also be sent this notice.
The furniture has been ill-treated by the tenant or by someone living with him and the tenant has failed to remove that person.
This ground covers cases where the tenant was an employee of the landlord and has since left his employ. This case is rarely used as most resident employees are licensees and therefore not covered by the housing acts.
The landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by either the tenant or a person acting at the tenant’s instigation.
The amount of notice required to be given to the tenant will vary depending on which Ground the tenant is being evicted on. If the landlord is relying on ground 2, two months’ notice must be given. If the landlord is relying on grounds 8, 10, 11, 12, 13, 14, 14A, 15 or 17, two weeks’ notice must be given.
Once the Tenant receives the Notice
Once you have issued the section 8 notice on your tenant, you are required to wait until the notice has expired – this is the date you give on the notice. Approximately 80% of tenants leave after being served notice.
If the tenant has not vacated, or paid up any rent arrears by this point, then it will be necessary to start court possession proceedings. This is done by obtaining the appropriate forms from your local court (forms N5andN119) and payment of the appropriate court fee.
In most cases, once a tenant receives the 8 notice, they vacate the property, to avoid any court hearings. However, if this is not the case, the landlord should apply for a possession order from a court.
Here’s more information on Evicting Tenants.
Does serving a Section 8 Guarantee A Possession Order?
Serving a section 8 notice does not guarantee that the court will grant a possession order for the tenant to vacate. It depends on which grounds are relied upon as well as the strength of the landlord’s argument.
However, Grounds 2 and 8 of a section 8 notice are mandatory, meaning that if a landlord is evicting a tenant that has breached either of those grounds and can prove to the court that the tenant is guilty, then the court MUST be in the favour of the landlord and issue the landlord with a possession order.
Grounds 8, 10, 11, 12, 13, 14, 14A, 15 and 17 are discretionary grounds, meaning that the court will not necessarily side with the landlord even if he/she can prove that one of the grounds applies. If this is the case, it is at the court’s discretion to determine whether to grant a landlord a possession order. The court will look at the facts and evidence and then make a decision.
If a court is satisfied that a landlord is entitled to possession on one of the grounds, then the court will grant a possession order to take effect within 14 days. In some cases, the court may extend this to six weeks if it will cause the tenant to experience exceptional hardship.
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