There are two main routes for obtaining possession of assured and assured shorthold tenancies:
- Section 8 route;
- Section 21 route.
The aim of this article is to explain the section 8 route and how to complete the form.
If you simply want to download the form now, click here.
When to use a section 8
If you wish to get possession from an assured (or assured shorthold) tenant before the fixed term has come to an end (for example due to default by non-payment of rent), you must serve notice of your intention to seek possession before applying to the court.
This procedure and notice operate under section 8 of the Housing Act 1988. We therefore call it a ‘section 8 notice’.
Section 8 or section 21?
Use section 21 if the tenancy is at an end. Section 8 does not apply here unless there is also a breach of the tenancy agreement.
Use section 8 if the tenancy is not yet ended and for example, if the tenant has breached the agreement.
Where both apply (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 quicker.
Breach of agreement by tenant
The most common type of default during the term of the tenancy will be for non-payment of rent. However, any breaches 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 adequate evidence or proof of the default before it will order the tenant to move out.
Grounds for Possession
The Housing Act 1988 defines 17 grounds that the landlord may use to recover possession. These grounds are laid down in Schedule 2 of the Act. It is important when using the section 8 you understand the different grounds. The grounds are simply the reason for your wanting possession. 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. Note, the exact wording of each ground can be found on the form available from Net Lawman at the end of this article.
Ground 8
When claiming possession it is often a good idea to cite more than one ground in your claim. For example, 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.
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 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. 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
How to serve a Section 8 Notice
To start proceedings, you must first tell the tenant (using the section 8 notice) that you wish to seek possession. 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. Note: the Net Lawman section 8 notice comes free with this rent letter and guidance notes on how to complete the form.
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. 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 you give 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.
Relevant Net Lawman documents
· Section 8 notice
· Other notices
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