Section 8 notices seeking possession: 10 key points for private landlords

The Housing Act 1988 allows a landlord to obtain possession of a property let to an assured shorthold tenant by first serving a section 8 notice seeking possession. At present, it is one of two routes to possession available to private landlords, the other being the section 21 procedure, commonly known as ‘no fault’ eviction.

The Renters (Reform) Bill, which is currently progressing through Parliament, will abolish section 21 notices and once it is fully implemented all possession claims against private tenants will proceed via the section 8 ‘grounds-based’ procedure. The use of section 8 notices will therefore become the norm.

This blog post looks at some key points landlords should consider when serving a section 8 notice.

What is a section 8 notice?

A section 8 notice is a statutory notice seeking possession. Section 8 notices require the landlord to set out a ground for possession, for example, rent arrears. It is therefore different to a Section 21 notice where the landlord does not need to provide a reason for seeking possession (although they do have to comply with several pre-conditions).

Why would a landlord use a Section 8 notice over a section 21 notice now?

A landlord may opt to serve a section 8 notice if they are unable to serve a section 21 notice. A section 21 notice cannot expire before the end of the fixed term of a tenancy (unless there is a ‘break clause’), and this is one example of a situation where a section 8 notice would be the only option.

Where a landlord has the option of relying on a section 21 notice or a section 8 notice they may choose to serve a section 8 notice as the notice periods are shorter. For example, if the tenant is in rent arrears, the notice period is currently 14 days. The landlord can then apply to the court for a possession order more quickly rather than wait for a 2-month section 21 notice to expire. Which notice to serve will depend on the circumstances of each case and there is nothing preventing a landlord from serving both types of notice simultaneously.

Once section 21 notices are abolished, landlords will only be able to recover possession by serving a section 8 notice.

What grounds can a landlord rely on?

The possession grounds are set out in Schedule 2 of the Housing Act 1988. For example, a landlord may serve a section 8 notice if the tenant is in rent arrears or they have breached a term of their tenancy. There is a mix of mandatory and discretionary grounds a landlord will have to prove. If the court is satisfied that a mandatory ground has been established, then the court is required to make an order for possession. With discretionary grounds, the court may only make an order for possession if it is reasonable to do so.

The Renters (Reform) Bill will change the grounds for possession amending some existing grounds and creating new grounds. As the bill is still proceeding through Parliament further amendments are expected. One of the latest amendments is a new ground for landlords to recover possession against full-time students living in houses in multiple occupation (“HMOs”).

When can a section 8 notice be used?

Not all possession grounds can be used if the tenancy is still within its fixed term and with some grounds, for example, Ground 6 (redevelopment), the landlord must wait until the end of the fixed term to rely on the ground.  Other grounds, such a Ground 1 (owner-occupation), require the landlord to have provided the tenant with notice before the start of the tenancy that they may later seek to rely on the ground.

If a landlord wants to rely on a ground that can be used while the tenancy is still within its fixed term they must also check that the tenancy agreement itself allows the landlord to bring the tenancy to an end on that ground during the fixed term. The only exception to this is Ground 7B (no right to rent).

The Renters (Reform) Bill will abolish fixed-term tenancies. However, landlords will be prevented from relying on some grounds in the first 6 months of the tenancy, for example, Ground 1 – occupation by landlord or family, Ground 1A –  landlord intends to sell and Ground 6 – redevelopment. To prevent abuse of the new grounds there are proposals to make it a criminal offence if a landlord serves a section 8 notice earlier than they are entitled to.

Using the correct form

 The notice must be in the prescribed form and landlords can use Form 3 which is available on the Government’s website. The notice requires a landlord to state the tenant’s or joint tenants’ full name(s), the address of the property the landlord seeks possession of, the ground(s) the landlord seeks to rely on, the reasons why the grounds are being relied on and the date on or after which court proceedings may begin. The form must also be signed and dated by the landlord or their agent.

The form needs to be completed properly and failure to do so could result in the notice being invalid. The form is updated regularly and landlords and agents must ensure they are using the correct version.

Specifying the possession grounds and particulars

The notice must set out the full text of the ground or grounds of possession together with a full explanation or ‘particulars’ of why each ground is being relied on. Care should be taken when drafting the particulars to ensure they are accurate and provide the tenant with sufficient detail of why the landlord seeks to rely on the ground. This is important because a court can strike out a claim where inadequate particulars are given. With rent arrears it is a good idea to attach a detailed rent schedule and refer to it in the notice. If the landlord is relying on tenant conduct then it is important that sufficient detail of the conduct or incidents complained of are given and vague statements are avoided.

Getting the notice periods right

The notice must set out that court proceedings for possession will not begin earlier than a specified date and the landlord must insert a calendar date that complies with the notice period requirements. Landlords must provide tenants with the correct period of notice otherwise the notice will be invalid. The notice periods vary depending on the ground relied on. When calculating the date to be inserted in the notice the landlord should ensure they include enough time for the notice to be validly served.

The government has published guidance for landlords on understanding the possession action process which sets out the current minimum notice periods. Note however, that some of the notice periods are expected to change under the Renters (Reform) Bill, for example, the notice periods for rent arrears grounds are expected to increase from two to four weeks.

Serving the notice

The burden is on the landlord to prove that the notice has been served on the tenant or joint tenants. Landlords should check the terms of the tenancy agreement to see if there are any express provisions relating to the service of notices. Tenancy agreements will often include clauses setting out how the parties should serve documents on each other and when service on the other party will be deemed to have taken place. Landlords can only rely on the service provisions contained in s196 of the Law of Property Act 1925 if the tenancy agreement expressly incorporates this provision. Landlords should keep proof of service so they have evidence should they need to start a court claim.

Starting a possession claim

A landlord can only start a possession claim in court once the notice period has expired. A section 8 notice only remains valid for 12 months after service. If the landlord has not started court proceedings in this time they will need to serve a new notice.

Can this matter be resolved without the need for a court claim?

Parties are encouraged to engage in early discussions to try and settle disputes outside of court where possible. Sometimes having a conversation with the tenant may result in understanding each other’s needs better and may assist the parties reach a settlement without costly and time-consuming court proceedings. If the landlord is a business and they are seeking possession on the basis of rent arrears they may also need to comply with the Debt Pre-Action Protocol before commencing a court claim. One of the Protocol’s aims is to enable the parties to resolve matters without court proceedings, potentially through Alternative Dispute Resolution (ADR). It is almost always worth exploring whether a claim can be resolved without court proceedings.

Some landlords may be less familiar with section 8 notices having always relied on the section 21 notice procedure. However, when the Renters (Reform) Bill becomes law, section 8 notices will be the only type of notice a landlord can serve to recover possession of their property. To avoid costly and time-consuming delays it is important to be aware of how to serve a section 8 notice correctly. Anthony Gold Solicitors have a team of specialists ready to help should you require assistance recovering possession of your property.