Debt Recovery : Landlord And Tenant Solicitors

Landlord And Tenant Solicitors

Evicting Tenants, Gaining Possession Of Rented Properties On An Assured Shorthold Tenancy Agreement

You have two ways of evicting tenants and gaining possession of your property under the Housing Act 1988:

  • Section 8 Notice To Quit (also known as a Section 8 Possession Notice) – a fault notice
  • Section 21 Notice Requiring Possession – a no fault notice.

Both must be worded correctly in accordance with the law if they are to be effective. Our experienced Debt Recovery team can advise you and serve notices on your behalf if required.

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Section 21 Notice – Accelerated Possession Proceedings

You can issue a Section 21 notice without the tenant having been at fault. 

Of the two means of evicting a tenant, a Section 21 notice is often the most certain means of doing so – but it is the most technical for a landlord.

For your Section 21 notice to be valid, you must have complied with a series of key legal points. They include protecting the deposit according to the law (or returning it to the tenant) and providing the tenant with the prescribed information about the deposit. 

Although Section 21 is often referred to as Accelerated Possession Proceedings, it is not always quicker than the Section 8 route. The notice period for a Section 21 notice is normally two months (based on a six-month tenancy agreement).

Advantages of a Section 21 notice:

  • you do not need to prove fault
  • you can evict the tenant(s) more quickly (if you do not seek to recover rent arrears)
  • there is a high probability that your tenant(s) will be evicted.  

Disadvantages of a Section 21 notice:

  • you must calculate the date of expiry (and draft the notice) very carefully
  • you must give the tenant at least two months’ notice of possession
  • you cannot serve notice until at least four months after the start of the tenancy (for tenancies that started after October 1 2015)
  • there are a number of technical issues that you must have complied with
  • you cannot include a claim for unpaid rent.

Section 8 Notice

Section 8 notices can be served when the tenant has committed a fault. Non-payment of rent is the most common cause.

These notices require less documentation to be exact than their Section 21 counterparts. The notice period is 14 days.

Some grounds are mandatory – such as the tenant owing at last eight weeks’ rent. Other grounds are discretionary (if the tenant has breached an obligation, such as causing annoyance). 

If your only grounds for serving a Section 8 notice are discretionary then the court must decide based on a balance of probabilities. This means that tenants may avoid eviction more easily.

Advantages of a Section 8 notice:

  • the most common grounds (non-payment of rent, breach of another term) mean you need wait only 14 days after the deemed receipt of the notice
  • you can alert the tenant to breaches in the tenancy – this can prompt them to find somewhere else to live
  • you can still recover possession, even if you have not complied with the Tenancy Deposit Scheme, Gas Safety Certificate or Energy Performance Certificate (EPC) rules – but remember that your tenants could issue a counterclaim
  • you can include a claim for unpaid rent up to the date of eviction
  • it can be quicker than a Section 21 claim.

Disadvantages of a Section 8 notice:

  • obtaining possession is not as certain as a Section 21 notice
  • you have to prove the grounds for possession as set out in your notice.

Serving Section 8 and 21 Notices, Issuing Proceedings For Possession

You can serve Section 8 and 21 notices on tenants at the same time – provided that you meet the required terms of each notice.

But in either case your tenants may refuse to vacate a property as required. The next step is court proceedings.

Unless a Section 21 claim is defended, no hearing is required and a possession order may be made. With a Section 8 claim a hearing will be required.

Tenants may attempt to claim compensation if the Assured Shorthold Tenancy agreement were not dealt with properly from the outset (for example, if a deposit were not handled according to the law). Claims may total up to three times the amount of the deposit.

Failure to register a deposit correctly may also stop you from issuing a Section 21 claim until the deposit is returned.

Section 21 v Section 8: Recovering Unpaid Rent

Section 21 is a more certain way of obtaining possession but does not include a claim for unpaid rent – but Section 8 claims do. 

If you make a Section 21 claim you will need to issue separate proceedings to recover any rent. Our Debt Recovery Department often deals with claims for unpaid rent.

What If The Tenants Ignore A Court Order? Warrant Of Possession

Often, the tenants may decide to remain in your property even after ordered by the court to vacate it. You may then need to issue a Warrant of Possession to have the tenant removed.

Need Help? Get Expert Legal Advice

Evicting tenants can be a difficult, frustrating and a more expensive process if you get the legal requirement wrong.

Contact our experienced landlord and tenant team in the Debt Recovery Department for expert advice on Section 8 and 21 notices, issuing possession claims and warrants for possession.

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