Evicting a tenant and getting the possession can be a tedious process for the landlords. Often, they are hit by a situation where they get confused as to what procedure they should follow to gain possession of their property and legally evict a tenant under an assured shorthold tenancy agreement.
This brings to light two main types of possession proceedings provided for in the Housing Act 1988: “Section 8 and Section 21”. Both notices are used to evict tenants, but they serve different purposes, so it’s critical to use the right one to avoid unnecessary delays and costs.
We will share how exactly you should serve valid notice on a tenant using Section 21 and Section 8 notices.
Beginning the Eviction Process
Section 21 and Section 8, both works for the same purpose, but both are different in approach. Usually, serving either notice is sufficient to compel tenants to vacate the premises without further action. But you must follow legal procedures while serving notice.
Section 21
Section 21 is applicable if the fixed term tenancy has been expired and you have given the tenant a notice period of not less than two months in writing. The landlord is not required to give any reason for eviction to the tenant when using section 21 notice. Therefore, this is the best route if a landlord wants possession to sell the property or use it for his purpose or to let the property to someone else.
The notice’s expiration date is determined by the date it is given, the dates of the original agreement and any subsequent agreements, and/or the due date for the rent to be paid. We’ll double-check the dates in the notice, which is why we’ll need to see any written tenancy agreement and the tenancy deposit information right away.
After section 21 notice has been served wait for it to expire. Then you can apply for a possession order to the court, this is specifically applicable to assured shorthold tenancies. In normal circumstances, the tenants leave without the need for a court order, after the initial notice has been served.
In the next step, the county court receives the papers and copies are sent to the tenant. If the tenant suffers any deficiency, then they should notify the court within 14 days. If the court feels that it needs to hear out the tenant’s defence then it will list the matter for a hearing.
In most cases, the tenants do not have a valid defence. The section 21 notice is successfully defended in the case where the original notice was defective, or the deposit was not paid into a tenancy deposit scheme as required by law.
You cannot claim rent arrears if you take the Section 21 route. Because a section 21 claim is difficult to defend, it may be more cost-effective to evict your tenant this way and then use our debt recovery service to collect your rent arrears.
Section 8
When a tenant has breached a tenancy agreement then it’s best to use section 8 notice. Most evictions taking place through the section 8 procedure are due to non-payment of rent. Now, the first step here is to serve a notice to the tenant, seeking possession.
The notice must be in a prescribed format; otherwise, the court proceedings will be null and void. Although it is not the only reason for issuing a notice seeking possession, we will focus on non-payment of rent in the following sections.
The tenant is given two weeks to bring up the arrears in the notice. After which time proceedings would be brought for both a possession order and a monetary judgment in respect of the rent arrears.
The only drawback of the section 8 procedure is that the above-mentioned accelerated process is not available, so the court will schedule a brief hearing, usually several weeks in advance.
Usually, a tenant will not attend the hearing which results in a final possession order being made in his absence, requiring him to give up his possession within 28 days.
A tenant who does show up will frequently claim that he or she is unable to pay much towards the arrears. If he or she can offer a reasonable amount toward the arrears on top of the usual monthly rent, the court has the option of not making a final possession order. But the court will instead make a suspended order for possession, which is an order suspended on the condition that the tenant makes regular payments toward the arrears as well as paying the rent as it falls due.
If the tenant still fails to make those payments, an application can be made to the court for a warrant seeking possession of the property.
Summing-up – Which Road You Should Go?
Now it is for you to decide what is more important to you, possession of your property or recovering the rent arrears? If possession is your priority, then section 21 would be the more appropriate route to follow. But if recovering your rent arrears is a greater concern then perhaps the section 8 route would be the better.
When you’re considering gaining possession of your property you need to bear one factor in mind, that your property may remain vacant for a while when you try to find a new tenant. If the tenant is not paying rent whatsoever, it’s an ideal situation for you to obtain possession as soon as possible. You can look for new tenants for letting out while carrying out the necessary maintenance work.
Shergroup is happy to discuss both section 21 and section 8 options and advice you which will be more suitable in your circumstances. Our eviction experts deal with the whole process professionally and safeguard your rights as a landlord. We offer a complete end to end service to issue a Claim for Possession, obtain an Order, and enforce the same, including serving of Notices for a fixed fee.
For further information on Shergroup’s Tenant Eviction Solution call us on 0845 890 9200 and speak with one of our friendly business advisors.
