Section 8 Notice (Fault Based Possession)

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Completion notes included

Introduction

The vast majority of tenancies end without any need for a landlord to go to court to get possession. Even where the landlord does have to get a possession order, the usual route is to seek possession via a Section 21 notice once the fixed term has come to an end and 6 months have passed since the tenant moved in.

Unfortunately, sometimes things start to go wrong from the outset and the landlord has to try an evict their tenant as soon as possible. For that, the landlord or agent will need to fill out a Section 8 notice so they can evict their tenant inside the fixed term of the tenancy. This is because possession based on the tenant's fault can be started at any time in the tenancy term. We do not recommend landlords to follow this procedure without instructing a solicitor.

On this page we explain in more detail exactly what a section 8 notice is (which deals with fault-based possession), steps to serving the notice and links to download a section 8 notice and all relevant court forms.

What is a Section 8 notice?

A 'Section 8 notice' is also known as a 'section 8 possession notice', because it operates under section 8 of the Housing Act 1988. A section 8 notice can only be issued to a tenant who has breached the terms laid out in the tenancy agreement and where certain conditions are met. The Housing Act 1988 provides a number of grounds on which a landlord may seek possession covering a variety of topics including rent arrears, tenants without right to rent, landlord's moving into the home, serious criminal or antisocial behaviour and breach of contract.

Which tenancies can use a Section 8 notice?

A Section 8 notice can be used for any assured or assured shorthold tenancies. They are not suitable for a company let, lodger agreement or non-assured tenancy. If you are looking to evict a tenant with one of these types of tenancy, full RLA members can contact the Landlord Advice Team for advice.

Are some grounds more likely to succeed than others?

Yes, the grounds for possession break down into mandatory grounds (1-8) and discretionary grounds (9-17).

Mandatory possession grounds mean that if the landlord can provide evidence that the grounds conditions are met, then the courts must grant a possession order.

Discretionary grounds by contrast do not entitle a landlord to possession automatically. Instead the judge is expected to weigh up a number of factors before deciding whether or not to grant possession. This can include the seriousness of the fault, whether it jeopardises the landlord's ownership of the property, the impact of eviction on the tenant, and the public interest to neighbours of evicting the tenant.

As a result, landlords who intend to seek possession under Section 8 should always look to include a mandatory ground where possible.

Which grounds will a landlord normally use?

Typically, landlords will use Grounds 8, 10 and 11 for rent arrears, ground 12 for breach of tenancy and ground 14 for antisocial behaviour. In addition, as the police have become more comfortable with applying for closure orders on a property, ground 7a has grown more popular with landlords.

For a full list of when each ground should be used, refer to our guide to grounds for possession.

How long should the notice period be for a Section 8 notice?

Unlike with Section 21, the notice period when using a Section 8 will vary based on the grounds used.

When calculating dates for the notice, the landlord or agent should be aware that a hierarchy of notice periods exist and some grounds take precedence over others:

Obviously, this means that if you can use ground 14 (antisocial behaviour) in addition to a mandatory ground such as ground 8 then you can have a shorter notice (24 hours) with a greater chance of possession.

Steps to serving a Section 8 notice

If a tenant has failed to pay rent after making requests for them to do so, or they have breached another ground that may breach your mortgage conditions / lease / other tenants, then consider serving a Section 8 notice.

For rent arrears, this notice will demand that the tenant pays any rent arrears in full within a certain period. The notice period will vary depending upon the grounds being relied upon. If the rent is due monthly, it is a month overdue the next day. If the tenant misses the next monthly payment, then the day after that payment is missed you can issue the notice. You do not have to wait until the end of the month.

Tips for serving a Section 8 notice

  1. Do not send by Recorded Delivery/email
  2. Take an independent witness and deliver by hand in an envelope
  3. Show witness what is in the envelope i.e. Section 8
  4. If handed to tenant, if possible get the tenant to sign for receipt on their copy and yours. When handed to tenant personally, it is considered to have been served on that day
  5. If posted through the letterbox get witness to photograph this with a digital camera, displaying the date on the photograph. Also if possible get the flat / house number in the photograph. The notice is considered to have been served the next working day when posted through the letterbox. If you are using a smart phone, consider an app like Solocator which puts the date, time and location on your photographs.

Next steps

If you are using a Section 8 notice on rent arrears only, the notice will expire 14 days after it is served. If ground 14 has been used as well, the notice will expire 1 day after it is served. If the tenant does not pay the rent within the period stipulated on the Section 8 notice, think about applying to the court for an order to evict the tenant. The order will also demand that the tenant pay any outstanding rent and may also demand that he/she pay the costs in applying to the court.

Landlords and agents should fill out Court Form N215 "Certificate of Service" as this will be needed when applying for the Possession Order.

The day after the notice expires you then complete both Court forms N5 and N119. This will cost £355 to make the application for a hearing.

If you apply using only Grounds 8, 10 and 11 then you are entitled to use Possession Claim Online to arrange a hearing, which is only £325.

10 days before the court hearing, complete the witness statement and attach to it all documents referred to in the witness statement, indexing them as indicated in the witness statement. Also update the arrears position as it will be on the date of the hearing. Send a copy to the tenant and the court (important: include the case number on both copies).

Accompanying Documents

  • Section 8 Blank (England)
  • Section 8 Blank (Wales)
  • Section 8 Blank - Completion Notes
  • Section 8 Rent Arrears (England) (members only)
  • Section 8 Rent Arrears (England) - Completion Notes (members only)
  • Section 8 Rent Arrears (Wales) (members only)
  • Section 8 Rent Arrears (Wales) - Completion Notes (members only)
  • Section 8 Grounds of Possession clauses (members only)
  • Court Form N215 - Certificate of Service (members only)
  • Court Form N5 - Claim form for Possession of Property (members only)
  • Court Form N5 - Completion Notes (members only)
  • Court Form N119 - Particulars of claim for Possession (members only)
  • Court Form N119 - Completion Notes (members only)
  • Court Form N325 (members only)
  • Court Form N325 - Completion Notes (members only)
  • Example Landlord Witness Statement (members only)
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