Section 21 vs. Section 8 Notice – What’s the Difference?
If you’re a landlord, Section 8 and 21 Notices are two methods you can use to legally terminate an assured shorthold tenancy agreement (AST) and require the tenant to vacate your property.
The Housing Act 1988 governs both Notices, and they both have their uses.
If you’re looking to evict a tenant for misconduct such as nonpayment of rent — or any other reason — which Notice should you use?
Or should you use both?
Find out more about when and which Notice to use, and the differences between them below.
What is a Section 21 Notice?
Currently, a Section 21 Notice is the go-to route for most landlords seeking to remove a tenant.
Sometimes called a ‘no-fault’ notice, you can use Section 21 to evict your tenant without having to give a reason.
Even if you are evicting the tenant due to their misconduct, you do not need to confirm this to the Court.
- You don’t have to give a reason for terminating the AST.
- If your paperwork is in order and you’ve completed and delivered the Section 21 notice correctly, it’s difficult for an AST tenant to challenge the notice.
Here are some common reasons a tenant may have a legitimate dispute with a Section 21 Notice.
- Tenant is not on an assured shorthold tenancy agreement
- Incorrect handling of the tenant’s deposit
- Mistakes on the Section 21 notice
- Failure of the landlord to act in the required timeframe
- Certain documents have not been served on the tenant
- An improvement notice has been served by the local authority in respect of disrepair at the property
The accelerated Section 21 procedure is usually a paper-based exercise that doesn’t require a hearing, saving you time and money.
The tenant is not able to counterclaim in accelerated possession proceedings (although they can make a counterclaim at a later date in separate proceedings).
- You cannot serve a Section 21 Notice during the first four months of the tenancy.
- The notice period is two months, meaning you must wait at least six months from the start of the AST before regaining possession of the property.
- A Section 21 Notice cannot end the tenancy earlier than the minimum fixed term period agreed in AST.
- You must be in compliance with requirements like deposit protection and providing prescribed information like gas safety certificates and an EPC. If you haven’t, the Notice will likely be found invalid.
- You cannot claim any rent arrears if you opt for accelerated possession. Section 21 notices are used to regain possession of your property only.
Because of their many benefits, Section 21 Notices are still the preferred option to regain possession for many landlords.
What is a Section 8 Notice?
A Section 8 Notice allows you to take legal action when an assured or an assured shorthold tenant has breached the terms of the tenancy agreement.
If you can prove your tenant’s breach warrants eviction under a mandatory or discretionary ground(s) for possession, as listed in Schedule 2 of the Housing Act 1988, a Section 8 Notice can be a powerful tool.
Common grounds for possession used on a Section 8 Notice include:
- Rent arrears of 2 months or more
- Anti-social behaviour (ASB)
- You wish to occupy the property yourself
- Fixed-term tenancies can be terminated before the term expires
- The notice period can be as short as fourteen days
- Possession proceedings may be started for certain breaches of the tenancy agreement as soon as the landlord serves the Notice.
- Grounds for possession are required for serving a Section 8 Notice. The Housing Act 1988 lists mandatory and discretionary grounds for possession. Your tenant’s breach must fall within at least one.
- A hearing of the claim will be listed in the local county court, which can lead to significant delays.
- If the grounds for possession are in dispute, your tenant could mount a defence of the claim and/or pursue a counterclaim. Typically, this means delaying or failing to repossess the property — and potentially costly legal fees.
- A tenant can give an oral defence at the hearing even if they haven’t shown any indication of contesting the proceedings beforehand.
- Section 8 Notice hearings aren’t allotted much Court time. The hearing may be adjourned to a later date if the Court feels the tenant hasn’t had sufficient time to present a defence.
- Adjournments and additional hearings equal more cost to prepare documents and longer delays
- Grounds 9-17 of a Section 8 Notice are discretionary. The Court will apply a test of ‘reasonableness.’ There’s always the risk it will find in favour of your tenant, and you’ll be back to square one.
Overall, using discretionary grounds for possession under Section 8 can be risky.
Even with mandatory grounds, your tenant may still file a counterclaim for things like failing to repair the property, correctly protecting their deposit, or paying it back on time.
If your tenant has just grounds, and the Court upholds their counterclaim, the value of any rental arrears will be lower.
If the reduced rental arrears fall below the required 2 month threshold, then the Court will conclude that Ground 8 is not made out, forcing you to rely on discretionary grounds which are uncertain.
Differences Between a Section 8 Notice and a Section 21 Notice
Reasons for the Notice
Under Section 21, a landlord doesn’t have to provide a reason for serving the Notice.
With a Section 8 Notice, the landlord must select at least one of the discretionary or mandatory grounds listed in the Housing Act 1988.
If your tenant is disputing the grounds for possession or making a counterclaim, a Section 8 Notice will always require at least one hearing.
If you opt for a Section 21 Notice and the accelerated procedure for possession only, it can be a paper-based process requiring no hearings.
Different Requirement for Notice Validity with Section 21
A tenant can challenge the validity of a Section 21 Notice if particular documents have not been given to them before the Notice has been served, or if the deposit was not dealt with correctly.
When Can a Section 8 or Section 21 Notice Be Served?
You can serve a Section 8 Notice at any point during the tenancy, and you may be able to end the tenancy before any fixed term in the agreement elapses.
A landlord cannot serve a Section 21 Notice during the first four months of the tenancy, and the notice period is two months. The notice period cannot expire within the fixed term period of the tenancy.
Can Both Notices Be Served at the Same Time?
A landlord can serve a Section 8 simultaneously with a Section 21 Notice. The Notices are served simultaneously but are independent of one another.
A landlord might serve a Section 8 Notice for rent arrears and a Section 21 for possession.
Even if the tenant repays the back rent, the landlord may want and have legitimate grounds to take control of the property for reasons that have nothing to do with a breach of the tenancy agreement. The Section 21 notice therefore acts as a back up.
Need Advice? Contact Helix Law.
It’s essential that you choose the correct Notice — or Notices — to pursue a tenant for a breach of the agreement and/or to regain possession of your property.
If you’re looking to achieve the best possible outcome, It’s vital to seek professional legal advice.
Serving the wrong Notice will delay the remedy for breach of the tenancy agreement and possession. It can open you up to challenges from the tenant and incur additional unnecessary costs of time and money.
If serving a Section 8 or Section 21 Notice (or both) is the best way to achieve your ultimate goals, we will ensure the correct Notices are served and help ensure a swift and cost-effective result.