All notices produced by this site are notices regulated by the Housing Act 1988 and references to sections refer to the above act. A valid notice is essential to evict your tenant legally. If you evict your tenant illegally you will commit a criminal offence and may be liable for substantial damages.
WHICH NOTICE SHOULD I USE?
A section 8 notice can be used where the tenant is in breach of the tenancy or where certain statutory grounds for possession are applicable. Section 21 notices can be served even when the tenant is not in breach of the tenancy and all that is required to obtain a possession order is proof that the notice has been served and is valid.
Possession proceedings can be commenced more quickly if a section 8 notice is used for arrears of rent (the deadline for starting proceedings can be longer if other grounds for possession are relied upon) than if a section 21 notice is used.
However if the tenant disputes the rent arrears then the first hearing will almost certainly be adjourned and it may take several months or longer for you to obtain a possession order and cause you to incur legal costs which the tenant will be unable to pay (notwithstanding any court order requiring payment of your costs).
You may therefore decide to serve the applicable section 21 notice instead of or as well as a section 8 notice, notwithstanding that your tenant(s) has contravened the tenancy agreement. You can also use the ‘Accelerated Possession Procedure’ which means that a possession order can be obtained without a hearing, if you seek possession based only on a section 21 notice and do not include a claim for arrears of rent.
You could serve both notices and decide which notice to rely on later. For instance, after serving the two notices, you may become aware that the tenant is likely to dispute any arrears of rent or raise a defence of set-off based on a breach of the landlord's repairing obligations. In these circumstances you could decide not to rely on the section 8 notice and start proceedings after expiry of the section 21 notice and rely on the section 21 notice alone. Essentially there is a trade off; a section 8 notice based on arrears of rent will allow you to start proceedings more quickly than a section 21 notice would, but obtaining a possession order based on a section 21 notice is usually more straightforward.
If there is a long time left to run on your tenancy and your tenant is in breach, then your best option will probably be a section 8 notice.
WHAT ABOUT SERVING THE NOTICE?
Please bear in mind that, if possession proceedings become necessary, then you will have to give evidence to the court as to how the notice was served.
For service of the notice, we recommend either personal service or ordinary first class post. We do not recommend using a ‘signed for’ service in case the tenant refuses to sign for the letter. If you wish to serve the document personally, then it will be deemed to have been served on the same day. However we recommend that you serve the document before 4.30 pm, in case it is argued by the tenant that the following day should court as the service day. You may wish to consider being accompanied by a witness when you serve the document.
If you serve the document by post then the date of service will be the date that the tenant would have received the notice in the ordinary course of postage. We recommend only using first class post. We suggest obtaining a free and stamped certificate of postage from the post office.
We allow you to calculate the date of service, we recommend erring on the side of caution by calculating the date of service as 3 working days from that of postage of the notice.
If the fixed term of your tenancy has expired or was a periodic tenancy from the start, then the expiry of your notice will be delayed if your are unable to serve it by the day before your rent is due (this is a period of your tenancy, e.g. if the rent is due on the 3rd then a period ends on the second of each month and a new one begins on the 3rd). For example if your rent is due on the 1st and you serve your notice on the 2.3.11, then your notice will expire on the 1.6.11. If instead the notice were served on the 27.2.11 then the notice will expire on the 1.5.11.
In these circumstances you may wish to use personal service, or not adopt our suggestion of allowing 3 full working days for postal service; if you do this you are taking a risk that proceedings will be struck out.
PERIODIC & FIXED TERM TENANCIES
This is not relevant if you are seeking possession based solely on the tenant failing to keep to the agreement, or a ground specified in the Housing Act 1988. We will ask you for this information and the website will generate the correct notice accordingly. Please bear in mind that the court cannot make a possession order based on a section 21 notice, that will take effect earlier that 6 months after the commencement of the tenancy, even if the tenancy is for a period of less than 6 months or was periodic from the outset. This will not affect the date of expiry of the notice and there is no reason why proceedings cannot be commenced within the relevant 6 months.
HOW DO I KNOW WHAT TYPE OF TENANCY I HAVE?
This will often be stated on the tenancy agreement. Most tenancies post dating 28.2.97 are Assured Shorthold Tenancies, unless they are explicitly said to be Assured Tenancies. Most tenancies entered into prior to this date are likely to be Assured Tenancies, unless they are explicitly stated to be Assured Shorthold. The main difference between the two is that you cannot use section 21 notices for Assured Tenancies but you can still use our service for a section 8 notice.
The expressions Assured and Assured Shorthold are sometimes used interchangeably and in some contexts they have the same meaning.
Some agreements cannot be Assured or Assured Shorthold Tenancies, please see schedule 1 of the Housing Act 1988 [Housing Act 1988] and some cannot be Assured Shorthold Tenancies, please see schedule 2A of the Housing Act 1988 [HA].
WHAT IF THE RENT FOR MY TENANCY IS NOT PAYABLE MONTHLY?
If you are not seeking possession based on a breach of the tenancy and you have a fixed term tenancy that has not yet expired then you can use the service, but please see the ‘Which Notice’ section. When you are asked which day of the month the rent is payable you can just enter any day.
WHAT HAPPENS IF THE TENANT(S) DOES NOT LEAVE ONCE THE NOTICE HAS EXPIRED?
A notice seeking possession will often have the desired effect, i.e. the tenant(s) leaving. However if they do not leave then you cannot remove them by force. This would constitute a criminal offense and would allow the tenant(s) to commence a civil action for damages. You must start legal proceedings and obtain an order that requires the tenant(s) to leave. If they do not comply then this order must be enforced by the Court Bailiffs.
You can retake possession if the property has been abandoned by the tenant(s) but this can be problematic. There have been cases where landlords have been liable for unlawfully evicting the tenant due to them wrongly thinking that the property was abandoned.
GROUNDS FOR POSSESSION FOR SECTION 8 NOTICES
At present we only cater for arrears of rent and not other breaches of the tenant's obligations. Once the site is updated to include other grounds for possession, then a summary of all of the grounds for obtaining possession with a link to the full legal text, will appear below.
In the meantime, ground 8 applies when the tenant is at least two months in arrears when the section 8 notice is served and at least two months in arrears on the day of the possession hearing. Reference is made to other periods, such as weekly rent but unfortunately our site does not cater for such tenancies.
Ground 10 applies when there are some arrears owing when possession proceedings are commenced and ground 11 applies when the tenant is persistently late with paying the rent.
Ground 8 is mandatory, meaning that if it applies the court must award a possession order. Grounds 10 and 11 are discretionary, meaning the court can make a possession order but is not compelled to. For this reason, you may wish to delay serving a section 8 notice until ground 8 is made out.
Obviously you will not know whether or not the tenant will clear or reduce the arrears before the hearing, but if the tenant is at least two months in arrears at the time the notice is served, then there is a chance that the judge's hands will be tied in your favour .
The above is merely a summary of these grounds, please follow the link if you would like to see the full legal text http://www.legislation.gov.uk/ukpga/1988/50/schedule/2.
GENERAL GUIDANCE
- Provide the information as requested. You may be offered a section 8 and(or) a section 21 notice. You only need one notice to evict your tenant but two notices may provide you with a safeguard if the validity of one of the notices is challenged by the tenant during court proceedings. You will probably be unable to rely on a notice if you start proceedings before the expiry date.
- You should date the notice on the day that you sign it. This is not the same as the service date which will not be stated on the notice. However it is very important that you are aware of the service date as explained below. The date of the notice will be before the service date or the same day, if personal service is to be used, but it should never be after the date for service.
- You must serve the notice(s) by the service date for them to be valid, as the expiry date of the notice is determined by the service date.
- Print out 3 copies of each notice (one to serve on the tenant, one for your own records, and one for the court)
- You have to sign and date all notices.
- If there is more than one tenant then you should serve identical copies of the notice on each tenant.
- You may manually amend a notice provided that it remains legible; for example by crossing out a mistake and writing replacement text in clear legible handwriting. However you should not change any dates the system has determined.
- Please follow the relevant tab to contact us if you have any queries or are experiencing any difficulty. The system will send an instant text to the overseeing lawyer – Joe Chiffers – in order to ensure a rapid response.
