Possession Following Tenant Default (section 8)
The most common type of default during the term of the tenancy will be non-payment of rent but any breaches of the terms of the tenancy agreement can also precipitate possession proceedings (e.g. damage to the property, nuisance to neighbours etc.) using the section 8 route and the possession procedure for arrears or breach of the terms will be the same. A badly drafted agreement may allow tenants to cause distress or inconvenience to the landlord without breaching any of the terms of the agreement - hence the need for a well-drafted agreement initially. Clearly, if there are technically no breaches of the tenancy agreement, no cause of action will arise and the landlord will be obliged to honour the agreement and allow the tenant 'quiet enjoyment' until the end of the fixed term.
The Possession Process - Rent Arrears (or similar default)
1. Rent Overdue / or breach of term of tenancy
2. Issue First Reminder
Issue Section 48 notice (if necessary)
3. Issue Second Reminder (optional)
4. Send Section 8 notice to tenant(s)
5. Issue summons for Possession quoting grounds relied on
6. Court confirms issue of summons & advises date
7. Attend hearing & present case before judge in county court
8. Court sets date for possession (usually 14 or 28 days after hearing) if appropriate
9. Possession Date: If tenant still refuses to leave, apply to court for warrant
10. Court Bailiff evicts tenant (if necessary)
Timing Considerations
There are normally significant delays involved in the standard court possession procedure. The actual time taken to force a tenant to give up occupation will depend at which step of the proceedings the tenant is motivated to move. The defaulting tenant may decide to move once he receives a court summons. Others will be more intransigent, often waiting until judgement is given, or at worst, until evicted by the bailiff following execution of the warrant for possession. Each step involves further delay and the entire process can generally take between three to five months from start to finish.
Since 15th October 2001 allocation of cases can be fast track, multi-track or small claims (if both parties agree). The new rules indicate that the following will be considered in determining allocation: the amount of rent arrears, the importance of the defendant retaining possession and the importance of vacant possession to the claimant.
The delays occur as follows:
- Notice of proceedings (minimum two weeks normally) - 14 days
- Average time between filing proceedings and hearing date - 2 months
- Possession order (if granted as an absolute order) - 28 days
- Average time between applying for a warrant and execution
Total = 4.5 months.
Preparing to serve the Notice of Seeking Possession (section 8)
A landlord seeking possession of an assured (or assured shorthold) tenant under the Housing Act 1988 as amended, must tell the tenant that it is his intention to start court proceedings by serving a notice on him. The Notice of Seeking Possession is issued under section 8 of the Housing Act 1988 and must be served in the prescribed form - often referred to as a 'section 8' or ''Form 3" (as described by the regulations). The notice could be included within your second reminder letter. NB. Where the tenant(s) is in arrears of rent, it is important that a brief schedule or a copy of the rent account is included specifying the amount claimed to be in arrears to show when and how the arrears have arisen. The notes on the following pages will explain how the notice should be correctly completed and served.
NB. You may notice that older versions of the s.8 form state that the form is not to be used if 'possession is sought from an assured shorthold tenancy under s.21 of the Housing Act 1988'. This does not mean that you cannot use this form for recovery of possession of ASTs - it is simply to indicate that it is the wrong form if you are seeking to recover possession under s.21 (recovery of possession of ASTs at the end of the term due to expiration of time).
Finally, it costs nothing to issue the section 8 notice and so getting the notice out at the earliest opportunity wins time for the landlord. The notice can always be withdrawn should the rent be subsequently forthcoming. If it is withdrawn this should be in writing.
Grounds for possession
Landlords need to refer to the appropriate grounds for possession as laid down in Schedule 2 of the Act. (see Appendix A for more detail and a full list of the grounds).Some of the grounds are mandatory, which means that if a landlord proves that one of the grounds applies the court has no choice but to award him possession. The other grounds are discretionary, and the court will only award possession if it is reasonable to do so. Some of the mandatory grounds, called 'prior notice' grounds, can only be used if the landlord informed the tenant in writing before the tenancy started that he intended one day to ask for his property back using those grounds. NB. Possession grounds for rent arrears are not prior notice grounds.
a. Non Payment of Rent.
For rent arrears, the landlord is relying on either one or a combination of grounds 8, 10 and 11.
- Ground 8: that the tenant owed at least two months' rent both when the landlord served notice that he wanted possession and still owes two months' rent at the date of the court hearing.
Ground 10: that the tenant was behind with his rent when the landlord served notice that he wanted possession, and when he began court proceedings.
- Ground 11: that, even if the tenant was not behind with his rent when the landlord started possession proceedings, he has been persistently behind with his rent.
(This is a summary - the full wording of each Ground is given in Appendix A). Ground 8 is a mandatory ground and thus the most powerful ground to use; the court must grant possession if this ground is proved. However, the drawback with relying on this ground alone is that the tenant can pay off part of the arrears shortly before the hearing, which means the ground can no longer be proved and thus the possession proceedings will have to be abandoned.
It is therefore common practice to cite multiple grounds of possession for rent arrears (i.e. grounds 8, 10 & 11) if applicable although it may not be possible to rely on ground 8 if the rent arrears have not accrued to a sufficient extent when the notice was served.
If ground 8 is not yet applicable, due to insufficient arrears, the landlord will then have to make a decision between starting the possession proceedings under the discretionary grounds 10 & 11 (where the court may order possession if it is 'reasonable' to do so), or incur a further delay until ground 8 will apply (where the court must order possession).
b. Other breach of Contract
There are four other discretionary grounds which deal with situations of misconduct on the part of the tenant. These are:
- Ground 12: that the tenant has broken one or more of his obligations under the tenancy agreement.
- Ground 13: that the condition of the premises or any of the common parts has deteriorated because of the behaviour of the tenant, his subtenant, or any other person living there.
- Ground 14: that the tenant or someone living in or visiting the property has been guilty of conduct which is, or is likely to cause a nuisance or annoyance to neighbours. Or that a person residing or visiting the dwelling house has been convicted of using the property, or allowing it to be used, for immoral or illegal purposes or has committed an arrestable offence in or in the locality of the dwelling house.
- Ground 15: that the condition of the furniture has deteriorated because it has been ill treated by the tenant, his subtenant, or someone living there.
(This is a summary - the full wording of the Grounds is given in Appendix A.)
c. Other Mandatory Grounds (Prior Notice)
The Act also makes provision for possession to be granted on the following grounds:
- Ground 1: that the landlord used to live, or intends to live in the property as his only or principal home.
- Ground 2: that the mortgagee is claiming possession. NB this can only be of use where the mortgage predates the tenancy.
- Ground 3: that the tenancy is a holiday let and was previously let for a holiday
- Ground 4: that the tenancy is a student let and was previously let by an educational establishment to students
- Ground 5: that the property is held for use by a minister of religion
In the above cases a court will generally require that the landlord has served notice of the respective ground on the tenant prior to or at the beginning of the tenancy. However, for grounds 1 & 2, a court has a discretion to dispense with this requirement if it considers it just and equitable to do so.
d. Other Grounds
A number of other grounds are also open to the landlord:
- Ground 6: where the landlord intends to redevelop the property - a mandatory ground
- Ground 7: that the former tenant has died (unless there is a person with a right to succeed) - a mandatory ground
- Ground 9: that suitable alternative accommodation is available - a discretionary ground
- Ground 16: that the tenant was granted the property in order to properly fulfil her employment duties and is no longer employed by the landlord - a discretionary ground
- Ground 17: that 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
Period of Notice
Grounds 3, 4, 8 & 10-13, 15 & 17: Where the landlord is relying on grounds 3, 4, 8, 10-13, 15 or 17, there is a requirement that at least two week's notice must be given under section 8.Ground 14: No notice period is required if the landlord is seeking possession using ground 14. Proceedings can begin immediately following the service of the notice. Other grounds: If a landlord is seeking possession on any of the other grounds, the landlord must give at least two month's notice. If the tenancy is statutory periodic and the period of the tenancy is longer than two months, then the notice period is equal to the period of the tenancy up to a period of one year. For yearly tenancies, six month's notice is required.
N.B.
1. Once the s.8 notice has been served, the landlord has twelve months to commence proceedings (see 'Time Limits' below)
2. In some cases, the failure to issue a written notice will be overlooked by the court. A court may still allow possession proceedings if the court considers it just and equitable to dispense with the requirement of such a notice. However, the court cannot dispense with the requirement of a proper notice if the landlord seeks to recover possession on Ground 8 (the mandatory ground for non-payment of rent).
Time limits for commencing proceedings
The landlord must commence proceedings after the date specified in the notice of intention to commence proceedings for possession but before 12 months from the date specified have elapsed (Housing Act 1988, s.8(3)(c)). If he does not do so, the court may not entertain proceedings for possession.Completing the Notice of Seeking Possession form (s.8 notice)
The notice may be completed by either the landlord or the landlord's agent.1. Name of Tenant. If there is more than one tenant, the notice should be addressed to all tenants jointly. It is important that the name(s) of the tenant(s) are given fully and spelt correctly on all forms relating to possession proceedings, or otherwise the court may declare the documents or proceedings invalid and dismiss the case.
2. Address of Premises. Enter here the full address of the premises including flat number and any other information that identifies the premises in an unambiguous manner.
3. Grounds. It is an absolute requirement that you enter the grounds under which you are seeking possession on the form at this point. NB. The Act states that the Notice of Proceedings must specify the ground and any particulars of it. It is vitally important that you should use the full and exact wording of the grounds for possession to be found in the Act when citing them on the section 8 notice.
A possession case (Mountain v Hastings, 1993) was lost when the section 8 notice was found to be defective as this section on the form was not completed correctly. In specifying ground 8, the landlord only included a brief description of that ground and this was not acceptable to the court.
4. Explanation of grounds. Specify the reasons why each ground is being relied on. For example, for rent arrears, explain the amount and nature of the arrears. A copy of the rent account can be attached.
5. Date of Proceedings. You should specify the earliest date when proceedings can be brought (i.e. the expiry date of the notice). For rent arrears (grounds 8, 10 or 11), this will be two weeks from the date of service of the notice. Other grounds may require a different period of notice - see section on previous page entitled 'Period of Notice'.
6. Name and Address of Landlord. The full name and address of the landlord should be given. Where an agent represents the landlord an address such as that given below would be sufficient for the purposes of this form.
Where there are joint landlords not all of them need serve the notice. It is validly served so long as it is served by at least one of them (s.8(1)(a)).
7. Agent's Details. If an agent acts for the landlord, this section should also be completed.
Serving the section 8 Notice
When completed, the notice must be 'served' on the tenant or tenants either in person or by post. The notice can be validly served by an agent acting on behalf of the landlord.If there is more than one tenant, the notice must be served on all tenants.
In the case of joint landlords, the notice need only be served in the name of at least one of the landlords.