What is a Section 8 notice?
A Section 8 (S8) notice is a written statement from the landlord to the tenant that they wish to regain vacant possession of the property.
It is called a Section 8 notice because the requirement for the landlord to serve notice in the prescribed way is a provision of Section 8 of the Housing Act 1988. It is also sometimes called a Notice of Seeking Possession or Form 3 Notice.
A S8 notice is required only to terminate an assured shorthold tenancy and is not appropriate for other types of letting agreement such as a commercial property lease or a residential licence to occupy.
The Housing Act 1988 (HA 1988) applies only to properties rented in England and Wales, so a S8 notice should not be used in Scotland or Northern Ireland.
Evicting a tenant and gaining possession
The HA 1988 gives certain rights to a tenant in occupation under an assured shorthold tenancy.
One of these is the right to occupy the property for the full fixed term set out in the tenancy agreement, which must be a minimum of six months.
The only way a tenant can be evicted before the end of the fixed term is by the 'Section 8 route', and even then, only if the landlord has one or more valid grounds for possession. Otherwise, the landlord cannot force the tenant to move out earlier than the date that the fixed term ends.
If there are valid grounds for possession (i.e. the tenant has done something wrong), the landlord must serve the tenant a S8 notice and wait for at least two weeks before applying to the court for an order for possession.
The tenant may move out immediately, or may wait for court proceedings to begin, or may wait for judgement.
If there are no grounds under S8 of the HA 1988 (i.e. the tenant has not done anything wrong), the landlord can only gain possession before the fixed period ends by mutual agreement with the tenant. For example, the tenant might agree to move out early in return for a reduction in rent for the last two months. Similarly, the tenant could also negotiate to end the contract early (for instance, if there is no break clause).
A S8 notice is a useful device for collecting rent arrears. It costs nothing to issue (except postage) and can be withdrawn (in a further letter) if the tenant subsequently pays his rent.
If the landlord obtains possession through a court order and the court procedure could have been avoided by the tenant, it is likely that the landlord will also be awarded costs against the tenant. A costs order against a tenant who has left the property may be difficult to enforce.
Section 21 or Section 8?
On 1 October 2015, the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations 2015 came into force. The effect is that Section 21 notices are only required to be served on tenancies that started before this date. A Form 6A notice should be used instead for tenancies created after this date.
It is also possible to give a tenant notice using a Section 21 notice, but only if the fixed term of the lease has expired.
Many landlords with problem tenants prefer the Section 21 route because it is simpler and faster. The Section 21 route takes at least two months, whereas the Section 8 route takes at least three. Serving a Section 21 notice may be seen by a tenant as less aggressive.
The Section 8 route can only be followed if there is a valid ground for possession (i.e. the tenant has done something wrong). A Section 21 Notice may be served for any reason.
You can read more information about serving a Section 21 notice.
Grounds for possession
The HA 1988 requires that possession can be sought only for certain reasons or grounds. It is important when using the Section 8 route that you understand the different grounds. The grounds are simply the reason for your wanting possession.
There are 17 grounds that the landlord may use, laid down in Schedule 2 of the Act. The first 8 grounds are mandatory. This means that if you can show that one of these grounds applies, the court must give possession.
The remaining grounds are discretionary. This means that the court will not necessarily give possession, but will look at the whole situation and only then give a judgement.
The most common grounds are for rent arrears which are covered in three grounds, 8, 10, and 11. Usually, it is best to choose all three if the tenant is in sufficient arrears to choose ground 8 (being mandatory). Be sure to read the grounds carefully and decide which ones you wish to include in your notice. We provide the exact wording of each ground in the notes to the Section 8 notice we provide.
Ground 8
Ground 8 is a the most common ground to use and a mandatory one - 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 it can no longer be proved and thus the possession proceedings may have to be abandoned. When claiming possession it is often a good idea to cite more than one ground in your claim.
Breach of agreement by tenant
The most common ground for possession will be for non-payment of rent. However, any breach of the terms of the tenancy agreement justify possession proceedings (for example, damage to the property or nuisance to neighbours).
The court will require that you or your agent is able to show firm evidence or proof of the default before it will order the tenant to move out.
Complaint
You should avoid serving a notice in circumstances where the tenant has recently complained to you about the state of the property, or where the tenant has asserted his or her rights in some way.
What are known as retaliatory evictions (evicting someone for something that you don't like, but that was in their rights to do) are illegal, and will make ending the tenancy more difficult.
How long does it take to remove the tenant?
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 may wait until judgement is given, or at worst, until evicted by the bailiff.
Each step involves further delay and the entire process can generally take between three to five months from start to finish.
Cases can be fast track, multi-track or small claims (if both parties agree). The rules indicate that the following will be considered in determining allocation:
- the amount of rent in arrears
- the importance to the defendant to remain in possession (perhaps because the tenant is a single parent with dependent children)
- the importance of vacant possession to the landlord
The following delays are usual:
- notice of proceedings: minimum 14 days
- average time between filing proceedings and hearing date: 2 months
- possession order (if granted as an absolute order): 14 days
How to serve a Section 8 Notice
To start proceedings, you must first tell the tenant that you wish to seek possession using a S8 notice. It must be served in the prescribed form. This means that certain information must be included. If certain information is not provided, it is likely that the court will throw the case out.
The notice could be included with a final rent reminder letter. If you download a Section 8 notice from us, we include one of these letters.
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 using their full names as stated on the lease. We suggest giving a separate copy of the notice to each. We suggest that a colleague witnesses your sending of the notice.
The court will recognise the day after first class posting as the day on which the letter would normally have arrived. However, when using Royal Mail, we recommend that the notice is sent by either registered or recorded delivery and that a minimum of three working days is allowed for the notice to arrive.
Make sure you keep receipt of sending as well.
Possession Proceedings
Once you have served a S8 notice on your tenant, you are required to wait until the notice has expired before you can issue court proceedings - this is the date you give on the notice plus a minimum of 14 days.
If the tenant has not vacated the property, or paid up rent arrears by this point, then you will have to start court proceedings for possession. You should obtain the appropriate forms from your local court (forms N5 and N119). There is a court fee to pay.