I am the Landlord of a private property and wish to evict my tenant, should I serve a S.8 or S.21 Notice?
The first point worth noting is that both sections 8 and 21 of the Housing Act 1988 can be used as the mechanism by which a landlord can evict a tenant occupying a property on an assured shorthold tenancy (“AST”). The issue, however, of which notice to serve, ultimately depends on the circumstances of the particular case.
Section 21 Notice
A S.21 notice is a ‘no fault’ possession notice whereby a landlord can regain possession on the last day of a fixed term tenancy or afterwards when the tenancy has become a periodic tenancy.
The ‘no fault’ nature of service means that a landlord does not require a reason for regaining possession of the property. So long as the court is satisfied that the notice is valid and has been correctly served then a possession order will be made against the tenant.
Before serving a S.21 Notice it is essential that the landlord has provided the tenant with:
Further, a S.21 notice cannot be served within the first 6 months of the tenancy and the tenant must be given two months written notice that the landlord requires possession of the property.
Section 8 Notice
Unlike a S.21 notice, a notice being served pursuant to S.8 can only be served when a tenant has breached the terms of their tenancy. Only under these circumstances can a landlord seek an order to repossess the property from an occupying tenant.
The most common reason for a landlord serving a S.8 notice is a tenant’s non-payment and/or late payment of rent. If the landlord can prove to the court that the tenant owes more than two months’ rent, or has breached the tenancy in another way, the court is obliged to make a possession order.
In addition, the tenant only needs to be given two weeks written notice when serving a S.8 notice compared with the two month notice needed for a S.21 notice.
However, despite the upsides, S.8 notices are much easier to dispute which may not only prolong the eviction notice and accrue further costs but at the end of it all there is no guarantee that the landlord will be successful.
Further, should the breach of the tenancy be the non-payment of rent, there is also an added risk for the landlord that the tenant pays the outstanding rent or reduces the amount outstanding to less than the two month threshold which has the consequence that the court has a discretion as to whether to make an order for possession.
Can both notices be served together?
In situations where there has been a breach of the AST and the agreement is more than 6 months in, then assuming all the necessary compliance documents have been provided to the tenant then both notices can be served concurrently.
In fact, where a tenant owing money to a landlord pays the arrears to such an extent that he falls below the two month threshold, should a S.21 notice be served alongside it will allow the clock to keep running so that once the two month notice period has elapsed on the S.21 notice the landlord will be entitled to reclaim possession of the property.
In any event, before opting for a particular course of action it is essential that:
- you make sure you have the grounds to serve a particular notice;
- all pre-notice formalities have been complied with;
- timeframes to allow for service and the tenants notice periods are accounted for; and
- when served the notice is valid and served to the tenants in the appropriate manner.