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What is a Section 8 Notice?

A Section 8 Notice can be sent by a landlord to a tenant under the provisions of the Housing Act 1988 to provide advance warning that the tenant may need to vacate the property. 

A Section 8 Notice is a warning, not an Eviction Order, and the tenant will not need to leave straight away as there is a notice period. 

A Section 8 Notice is a notice seeking possession. A tenant should vacate the property on receipt of such a notice, but for the landlord to be able to rely on the notice it must first be judged valid to be enforceable, and then followed by a possession order from the courts. This takes time and costs money. The court will determine the validity of a Section 8 Notice and if the grounds for a possession order are reasonable and the notice is correctly and properly draft. 

A Section 8 Notice is only valid in England and Wales.

What is a Section 8 Notice?

If a tenant performs specific actions in breach of the tenancy agreement, such as not paying rent, the landlord can issue a Section 8 Notice. 

A Section 8 Notice includes and sets out a notice period leading ultimately to eviction. A Section 8 Notice is only relevant to an assured or assured shorthold tenancy agreement- it cannot be used with other types of tenancy or in relation to commercial property. 

Even if the grounds for seeking possession within the Notice are deemed valid and upheld by a Court hearing, the tenant can delay vacating the property by up to six weeks if leaving sooner would cause problems or hardship. The court only has discretion to delay by 14-42 days at most.

The notice period has been changed at various times because of Covid and has varied throughout the pandemic. It is essential to check the actual notice requirements at any given time which will differ across England and Wales. 

If the grounds for the notice are anti-social behaviour, this can impact the length of time before the tenant must leave. The notice period may be shorter than it is for failure to pay the rent. 

The other alternative to a Section 8 Notice is a Section 21 Notice. These Notices can be issued together in some circumstances but if not handled correctly this can create complexity as one can invalidate the other. 

A Section 21 Notice also starts the process to end an assured shorthold tenancy and can be used to end a fixed term tenancy.

When Can Landlords Serve a Section 8 Notice?

A Section 8 Notice can only be served on tenants with an assured, or an assured shorthold tenancy. Landlords use it in situations where the tenant has broken the terms of the tenancy agreement. The alternative may be a Section 21 Notice.

The Landlord must give legal grounds for the Notice. The most common amongst these is rent arrears. Other typical violations include damage to the landlord’s property, obtaining a pet when the tenancy expressly forbids it or persistent nuisance to neighbours caused by anti-social behaviour.

A Section 8 Notice lists 17 potential grounds for possession — the first 8 of which are mandatory. A court must uphold a Section 8 Notice that lists mandatory grounds for possession, providing the landlord can demonstrate the required supporting criteria. If they do, the tenant will have to vacate the property – there will be no leeway at a court hearing. 

Grounds 9-17 of a Section 8 Notice are discretionary. The court will apply a test of ‘reasonableness’ to determine if the landlord’s claim is fair and the tenant has vacated the property. Schedule 2 of the Housing Act 1988 lists the grounds for possession.

If a Section 8 Notice contains several grounds for possession, the Court will consider the mandatory grounds first and make a judgement on that basis. If the landlord cannot prove or demonstrate evidence for grounds 1-8, the Court will move on to consider the remaining discretionary grounds. 

We typically advise landlords to seek possession on the basis of mandatory grounds- otherwise with discretionary grounds, there is risk a judge might allow a tenant leeway to remain in the property.

Rent arrears are a common mandatory ground for possession if the landlord can demonstrate that rent has not been paid under the tenancy agreement. Other mandatory grounds include the tenant using the property for criminal activity or repossession by a mortgage company because the landlord is in arrears with the mortgage payments. 

If the tenant has rent arrears, the landlord can often use more than one ground for possession, depending on the tenant’s situation. Even though some of the grounds for rent arrears have a mandatory classification, if the tenant attempts to catch up on rent payments, the court hearing may still rule that the tenant can remain in the property subject to a suitable arrangement to repay the arrears.

What Makes a Section 8 Invalid?

A Section 8 Notice will be invalid if the tenant who receives the Notice does not have an assured or an assured shorthold tenancy. The tenancy may be fixed-term or on some other type of legal basis to occupy the property.

A Section 8 Notice must give a valid reason for service, and all required data must be complete. Examples of common errors in Section 8 Notices are failing to include the correct names of all parties to the tenancy agreement or an inaccurate Notice end date. The Notice could be invalidated for failing to provide complete and accurate data —  even for an assured or assured shorthold tenancy.

The reason for eviction on the Section 8 Notice must be valid and is usually described as ‘the grounds for possession’. In the case of rent arrears, there could be more than one ground listed. 

The court can decide if the reason(s) for the eviction given in the Section 8 Notice is valid. If the reason(s) the landlord provides aren’t sufficient or no reason is given, the Section 8 Notice will be found invalid.

Use of an invalid Section 8 Notice will allow challenge to the landlord’s actions in the courts, but it may not change the final outcome if the court decides that the landlord was/is justified in asking the tenant to leave.

Challenging an invalid Section 8 Notice can extend the notice period. A tenant can also contest the Notice if they have a valid reason for not leaving the property. This is referred to as ‘defending possession’. We deal with both the drafting of Section 8 notices, and defended court possession claims for landlords and investors across the country.

How To Serve a Section 8 Notice?

A Section 8 Notice is typically served in writing using a ‘Form 3’. It can also be served as part of a letter that contains all required information and states that it is a  Section 8 Notice. It is essential to use the current version of the official form as an out-of-date edition will make the Notice invalid.

The Notice should contain the tenant’s name, the full property address, the reason for eviction or grounds for possession, and the date the Notice ends. The landlord can still proceed to court to ask for an eviction notice even if the Section 8 Notice has been incorrectly served. It is up to the court to decide the merits of the case and to reach a decision. 

Keeping evidence of postage or receipt of the Section 8 Notice is advisable in case the tenant denies receiving it.

If the Section 8 Notice is valid and the tenant does not leave the property by the date on the Notice, then the landlord can go to court to start a possession claim to evict the tenant. A claim for a possession order cannot begin until after the date on the Section 8 Notice.

Conclusion

A Section 8 Notice is a warning that a tenant should never ignore. For landlords, deciding whether a Section 8 or Section 21 Notice is most appropriate depends upon the specific circumstances. 

Both landlords and tenants should seek professional advice at an early stage to determine the best course of action, and to ensure the correct notice, properly drafted, is prepared. Taking that approach avoids wasted time and costs later.

Posted by:

Alex Cook
Solicitor

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