Section 8 Notices – Getting it right

It is very common for landlords to rely on the mandatory Ground 8 in Schedule 2 of the Housing Act 1988 to gain possession of properties from tenants who fall into severe rent arrears of two months or more. In these circumstances, landlords will serve a Section 8 notice of seeking possession on tenants using the prescribed form (Form 3).

The recent decision in the case of Kassam v Gill and Gill has shown that even the simplest of documents can cause severe implications if it is not drafted correctly.

Ground 8 reads:

‘Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing—

(a)     if rent is payable weekly or fortnightly, at least [eight weeks]’ rent is unpaid;

(b)     if rent is payable monthly, at least [two months]’ rent is unpaid;

(c)     if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and

(d)     if rent is payable yearly, at least three months’ rent is more than three months in arrears;

and for the purpose of this ground “rent” means rent lawfully due from the tenant.’

The section 8 notice requires that the grounds that the landlord is relying on are set out. While the notes within the standard notice template itself state that the ground from schedule II should be set out in full it has previously been held by the Court of Appeal that the exact wording is not required as long as the wording chosen conveys the same sense to the tenant as the wording of the statute.

In this case, the court decided that a claim under Ground 8 could not succeed on the basis that the wording of Ground 8 included within the notice failed to include the final key phrase:

“and for the purpose of this ground “rent” means rent lawfully due from the tenant”

There was also no wording making clear that the sum owed was still owed as at the date of the hearing.

The two failures to state clearly that the rent was ‘lawfully due’ or owed at the date of the hearing were fatal. These are key elements of a claim for possession based on Ground 8. The rent must be lawfully due and it must be due both at the time the notice is served and at the time the case is heard in court. Not setting out these key points in the notice failed to convey key elements to the tenant.

Fortunately for the landlord they are able to rely on the discretionary Grounds 10 and 11 to bring a possession claim but these will have to be heard at a later date, massively increasing their costs. Of course, being forced to rely on discretionary grounds also substantially weakens the landlords’ claim as the court does not have to grant a possession order and will only make an order if it is reasonable to do so.

It is clear that court will take a strict approach in deciding whether a minor omission should be excused and this is likely to be the case going forward. The court cannot dispense with service of a Section 8 notice where mandatory grounds for possession are being relied on, so it is important to get it right in the first instance.

Even more frustratingly for the landlords they had in fact used what they thought was a professional. In this case an unregulated “eviction specialist” called Remove a Tenant which is a trading name of Fentham Group Ltd. This firm is not regulated in any way and therefore not insured. So the wasted time and legal costs the landlord has now incurred in sorting this mess out are unlikely to be recovered.

If you are in doubt, it is advised that you seek legal advice in order to avoid the consequences flowing from incorrectly drafted notices. Anthony Gold Solicitors have long standing expertise in this area with many years of experience in contested tenancy evictions and acknowledged expertise in the field, providing training to legal professionals as well as to unregulated providers.