Landlords often ask us what sort of procedure they should follow to gain possession of their property and legally evict a tenant under an assured shorthold tenancy agreement. This outlines the key features of the two main types of possession proceedings provided for in the Housing Act 1988: section 8 and section 21.
Section 8 proceedings require that the tenant be given a reason, or legal ground, as to why the landlord wants the property back in the notice. There are only a certain number of grounds provided for in the Housing Act 1988. A full list of the potential grounds can be found here. The most common grounds (and the only ones that will be discussed here) are when the tenant has done something wrong:
- Ground 8: That the tenant is in at least two months’ arrears of rent
- Ground 10: The tenant has some arrears (any arrears)
- Ground 11: The tenant is persistently late paying rent (if even the tenant is not in arrears)
The notice has to be in a special form and has to list the grounds. It can be served with view to obtaining possession before the end of the fixed term of the tenancy. The notice period is only 14 days. After the expiry of 14 days, the landlord can then issue a claim if the tenant has not left the property. The claim can rely on multiple grounds and the landlord can include a claim for rent arrears. Once the claim is issued, the tenant receives a copy of the claim form and can file a defence.
There is always a hearing in section 8 proceedings, and sometimes (but not always) it takes a long time to get a hearing date because the courts are busy. The tenant can appear on the day of the hearing and provide a written or oral defence even if they haven’t filed anything in advance.
Hearings are usually allotted very little court time, possibly five or ten minutes, so if the court doesn’t think that there is enough time to properly consider a tenant’s defence – even if the defence seems weak or is poorly presented – it will adjourn the hearing to another date and may require that the parties file further evidence.
At the hearing, if the judge is satisfied that that the tenant was in two months’ arrears at the date the notice was served and at the date of the hearing (ground 8), then the judge must order possession. This is good because it is certain. The other reasons – some arrears but not two months’ worth (ground 10) or late payment of rent (ground 11) – allow judges to exercise their discretion. The judge might make an order for possession, but might not. If not, the landlord is effectively back at square one.
We generally advise landlords not to issue section 8 proceedings if they will be relying only on discretionary grounds because it’s very risky – they might not get their order after months of waiting with a bad tenant in the property. However, we also advise landlords to be very careful when they rely on ground 8 (two months’ arrears) if the tenant might be able to bring a counterclaim.
In section 8 proceedings, tenants sometimes file a counterclaim against a landlord for things like disrepair or for failing to protect their deposit in time. The penalty for failing to protect a deposit in time (see our blog here) can be three times the value of the deposit. The counterclaim value is offset against the total arrears, which has the effect of lowering the arrears. If it brings the arrears below the two-month threshold, ground 8 is not made out and the landlord will only have discretionary grounds to rely on.
If all goes well at the hearing, the judge makes an order that the tenant give up possession of the property and pay the arrears (and fixed costs – currently just under £425) within 14 days.
- Notice can be served to bring the tenancy to an end before the end of the fixed term of the tenancy
- Short notice period: possession could be obtained quite quickly depending on how busy the courts are
- Arrears can be claimed at the same time
- Slower: the courts are busy and it can take a long time for a hearing to be listed. The wait time for a hearing date or the need to have multiple hearings is something outside the landlord’s control so is hard to predict
- Greater potential for delays (e.g. if the hearing is adjourned)
- Expense: time is money when a tenant isn’t paying rent, and legal costs will be higher if hearings need to be prepared for (e.g. drafting witness statements, providing representation)
- Risk: counterclaim or judgement on discretionary grounds
A section 21 notice can be thought of as a no-fault notice. No reason needs to be given as to why the landlord wants the property back so it can be used for good and bad tenants alike. For tenancies that started after 1 October 2015, the notice has to be in a special form. For earlier tenancies, it just has to include particular information. The notice period is two months, and the notice cannot expire during the fixed term of the tenancy (i.e. the notice cannot end the tenancy earlier than the minimum period it was supposed to last). If the tenant has not vacated the property after the expiry of the notice, then the landlord can issue a claim.
In order for a section 21 notice to be valid, the landlord has to have complied with certain requirements (e.g. deposit protection issues and the provision of prescribed information, gas safety certificates, EPC and the How to Rent booklet). These are quite technical and are set out in a blog here. If the notice is invalid, any claim based on it will be defeated.
Once the claim is issued, the tenant will receive a copy of the claim form and has the opportunity to file a defence. The accelerated section 21 procedure is meant to be a paper-based exercise that doesn’t require a hearing. If there are arrears, they cannot be claimed within the accelerated section 21 procedure – it is for possession only. If landlords want to get the court to order a tenant to pay arrears as well as obtain an order for possession then they will need to use the normal, non-accelerated, procedure. This will require a hearing which will add to the time and expense.
If, after receiving the papers in an accelerated claim, the judge is satisfied that all the necessary information is contained in the claim form and all the requirements have been met, he or she must order possession and has no discretion to do otherwise. However, if the claim is defended by the tenant or if the judge thinks there is some irregularity in the claim form, a hearing can be ordered, or the judge may write to the landlord to ask questions.
Typical defences are that either the section 21 notice was not valid or not received. If the evidence contained in the claim form strongly indicates the contrary, the judge still might decide the matter on the papers without a hearing. Being able to evidence validity of the notice is critical.
If there is a hearing, the only issue that can be considered is whether the claim for possession is made out. The judge cannot consider arrears or, importantly, any counterclaim. The tenant could later go on to file a separate claim (e.g. for disrepair), but cannot do so within the possession proceedings.
If the judge does decide to order possession, either on the papers or at a hearing, he or she will order that the tenant give up vacant possession of the property and pay fixed costs in 14 days (there can be no order that the tenant pay arrears).
- Faster (usually) than section 8
- Less expensive (possibly no need for a hearing)
- No risk of a counterclaim in the same proceedings
- Cannot recover rent arrears
- Longer notice period
- High bar for notice validity
- Must have complied with deposit protection requirements or returned deposit
In both proceedings:
The courts are busy, and so this can mean that it takes a long time for a hearing to be listed or for judges to consider papers.
If a possession order has been made but the tenant has not vacated by the specified time, the landlord cannot forcibly evict the tenant at that date; a warrant for possession of land (a.k.a. a bailiff’s warrant has to be obtained from the court). There is a blog on timescales here.
The court fee is the same for each. We offer fixed fees for each stage of the process. These can be found here.
At a glance:
| – Notice can be served to bring the tenancy to an end before the end of the fixed term of the tenancy
– Short notice period
– Arrears can be claimed at the same time
| – Faster (usually) than section 8
– Less expensive
-possibly no need for a hearing
– No risk of a counterclaim in the same proceedings
| – Slower
– Greater potential for delays
| – Cannot recover rent arrears
– Longer notice period
– High bar for notice validity
– Must have complied with deposit protection requirements or returned deposit
Laura Albon – Laura has been working in litigation for nearly 10 years. She works almost exclusively with property investors and agents across the whole country. She trained with the partners of Helix Law and has extensive experience in possession, service charge recovery, breach of covenant and commercial contract claims. She is able to pursue matters through the court and through The First Tier Tribunal (formerly the Leasehold Valuation Tribunal or LVT).
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.