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Claims for Possession: The section 8 Notice

 

There are two main routes for obtaining possession of assured and assured shorthold tenancies:

The purpose of this factsheet is to briefly explain the section 8 route and how to complete the corresponding notice.

Background:

Where a landlord wishes to get possession from an assured (or assured shorthold) tenant before the fixed term has come to an end (e.g. due to default by non-payment of rent), he must serve notice of his intention to seek possession.

This procedure and notice operate under section 8 of the Housing Act 1988, and, for this reason, we refer to it as the section 8 route and section 8 notice respectively.

Briefly, the requirements of section 8 are:

  • the landlord or, in the case of joint landlords, at least one of them, has served on the tenant a notice in accordance with this section and the proceedings are begun within the time-limits prescribed in the Act and stated on the notice
  • the notice must be given in the prescribed form - available from legal stationers, or from our website
  • the notice must specify grounds why the landlord requires possession.

The Act provides 17 grounds which a landlord may use to recover possession under section 8. The landlord is required to specify in the notice which ground he intends to use, and also to give particulars of the ground which applies, to support his claim.

End of Tenancy:

If the tenancy is an assured shorthold tenancy, and the landlord requires possession at the end of the tenancy under section 21 of the Housing Act (the section 21 route), Section 8 does not apply to these cases (unless there are other grounds such as rent arrears) and you should use the section 21 route (see Letting Factsheet No. 21)

Where both routes apply (say, for example, where the tenancy is at an end and there are also rent arrears), then the section 21 route is generally preferred as it is simpler and often quicker.

Tenant Default:

Generally, the section 8 route is used where there is some default on the part of the tenant. 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 this route. The court will require that the landlord, or his agent, is able to show adequate evidence or proof of the default before it will order the tenant to move out of his rented home.

It is important, therefore, when using the section 8 route, for the claimant to understand clearly the different grounds and which will apply. Some grounds require that the court automatically award possession if the ground is proven, whereas, in others, the court may exercise its discretion. In rent arrears cases, it is normally straightforward to prove default (by supplying a rent schedule detailing the missing payments) whereas in other cases (damage or noise nuisance), it will be important to show that the tenant is in breach of his tenancy agreement, and carefully record the damage or complaint in the possession claim.

Grounds for Possession:

The Housing Act 1988 defines 17 grounds that the landlord may invoke to recover possession of his property.

These grounds are laid down in Schedule 2 of the Act. When claiming possession under section 8, it is possible and, in many cases, advisable for the claimant to cite more than one ground in his claim.

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 (in the case of a monthly tenancy) both when the landlord served notice that he wanted possession and still owes two months' rent at the date of the court hearing. If the rent is payable weekly, quarterly or yearly the ground requires that there are rent arrears of eight weeks, three months and six months respectively.
  • 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 The Housing Act 1988).

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).

Common practice is to 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 so that the chances of successfully obtaining the possession order are maximised. However, in many cases of rent default, landlords have been successful in relying on grounds 10 & 11 alone.

b. Other breach of Contract

There are four other discretionary grounds which deal with situations of misconduct on the part of the tenant:

  • 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 of the grounds - the full wording of each Ground is given in The Housing Act 1988).

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

(This is a summary of the grounds - the full wording of each Ground is given in The Housing Act 1988).

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

(This is a summary of the grounds - the full wording of each Ground is given in The Housing Act 1988).

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 15 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) 14 days  
                                                                             Total  3 months

Preparing to serve a Section 8 Notice:

A landlord seeking possession of an assured (or assured shorthold) tenant under the Housing Act 1988 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 with a final rent reminder letter.

The form requires you to name the address of the property and the names of all tenants included on the tenancy agreement. Most importantly, you must also enter, on the form, the grounds under which you are seeking possession, and an explanation why each of the grounds is being relied upon. 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. When specifying the ground, it is important that you supply the full and exact wording of each ground when completing the form. This factsheet simply gives a summary of the grounds - an exact wording of these ground can be found in the Housing Act (see Sources of Further information below).

It is important that the notice should be correctly completed and served. If there are substantial technical errors in the notice, the court is entitled to suspend or strike out the possession action.

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 AST's 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.

Service of the Notice:

A section 8 notice may 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. We suggest that a colleague witnesses the sending of the notice. When using postal service, it is recommended that the notice be sent by either registered or recorded delivery and that a minimum of three working days is allowed for the notice to arrive.

Possession Proceedings:

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 given on the 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 N5 and N119) and payment of the appropriate court fee. The process, and useful case examples, are explained in further detail in the Possession and Rent Arrears Pack (see Sources of Further Information).

Sources for Further Information:

  • Possession and Rent Arrears Pack - this publication is available from The Letting Centre (details below). For pricing and further information please click here.

  • The Housing Act 1988. A copy of the Act is available on the Letting Centre website (below) or from The Stationery Office Tel: 0870 600 5522 (Price £15) ) www.tso.co.uk.

  • The Letting Centre provides further information and all standard forms required including s21, s8 forms, website: www.letlink.co.uk