If you need to evict your tenant, then chances are you are going to have to serve one or both of the above notices.
Section 21 notice requiring possession
More often than not the most common notice for landlords to serve until very recently, the regulations around service of the section 21 has evolved somewhat since its birth.
Many landlords will choose to serve a section 21, even when there are rent arrears and other issues, that a section 8 notice could also be used for – this is because a valid and properly served section 21 will give rise to a mandatory ground for possession in court for which there is no defence.
However, with the introduction of additional regulation in the form of the Deregulation Act 2015, the rules for serving a section 21 have become more complicated. These are some of the features:
- If the most recent tenancy commenced after 1st October 2015, before the start of the tenancy, you must serve on the tenant the following:
- An Energy Performance Certificate (EPC)
- The Government “How to Rent” Guide
- A Valid Gas Certificate (if there is gas in the property)
- The Section 21 notice requiring possession must be served on Form 6A which is in a prescribed form
- The new notice on form 6A is valid for only 6 months from the date of service
- The form 6A very helpfully tells the tenant what you as the landlord should have done in order for the 6A to be valid.
- If there is a breach of the tenancy deposit regulations, then you cannot serve a valid section 21 until you have returned the deposit
To make matters worse, in early 2019. A county court case, Caradon Property v Monty Shooltz, established a principle (which although not binding) that if you cannot prove that you served a valid gas safety certificate on your Post Oct 2015 tenant, then any section 21 you serve will be invalid. This case was specifically about the gas safety certificate, however the principle is likely to apply to the EPC and How to Rent Guide as well.
Most people will now be aware that there are plans afoot to completely do away with the section 21 notice – for now it’s a case of watch this space.
Section 8 notices seeking possession
The section 8 notice seeking possession is primarily for breaches of contract and is made up of a small number of mandatory grounds and a larger number of discretionary grounds.
The most common ground that is used to evict a tenant is Ground 8, that the tenant is 2 months or 8 weeks in arrears. This is usually accompanied by Ground 10 – that some rent is owed, and Ground 11 – that rent has been persistently paid late.
Amongst other grounds there is Ground 12 – Any other breach of contract that is not rent related.
Ground 13 – the property is being neglected or damaged
Ground 14 – There is antisocial behaviour
Ground 17 – the tenant has got you to grant the tenancy as a result of deception
The above are the most common Grounds of which Ground 8 is the only mandatory ground amongst them.
We would never recommend serving a section 8 notice on discretionary grounds alone unless-
- There is very serious antisocial behaviour and you have good evidence (Ground 14)
- The tenant is damaging the property to the point of there being concerns of Health and Safety (Ground 13)
- Ground 17 – you would need good evidence that the tenant had deceived you in order to secure possession of the property – usually fake references that were not flagged up at the referencing stage but later came to light
Usually, you would serve a section 8 notice citing several grounds, for example:
Ground 8, Ground 10, and 11 – for rent arrears. Although, if it is clear that the property is being neglected you might add Ground 13. If the tenant is refusing access to the property to allow you to inspect, Ground 12 (there will likely be a clause in the agreement requiring access to be provided).
The rules around serving a section 8 notice are not the clearest and the guidance also far from clear. If you do not set out the grounds clearly and precisely you risk having the notice and therefore your possession claim deemed invalid.
Serving both section 8 and Section 21 notices together
Serving both notices can sometimes be a good thing to do tactically if you need to evict your tenant. For example, if the tenant has more than 2 months of rent arrears and you are able to serve a valid section 21 notice – if the tenant is evicted for rent arrears they will end up with a County Court Judgement and this could affect their ability to be housed and future credit rating. In particular Council’s will take a keen interest when deciding whether to house a tenant if they were evicted for rent arrears – having both notices may mean that you can encourage your tenant to reduce the arrears in order to not jeopardise their application with the council.
On the other hand, if you have a valid section 21 and section 8, should the tenant decide to defend the claim – you can always drop the section 8 and ask for possession under section 21 which is mandatory. How you proceed will largely be down to your individual situation and further advice can be given if you make contact and engage our services once we have carried out an appraisal of your case.