The majority of residential tenancies that now exist this England and Wales will be Assured Shorthold Tenancies (an ‘AST’) and there are strict rules which govern how this type of tenancy can be ended. The Housing Act 1988 dictate that in order for a landlord to end an AST that they have granted they must either serve a Section 21 or a Section 8 notice on the tenant.
Which notice can be used depends completely on when the landlord wishes to end the tenancy and the reasons for doing so. Broadly speaking the notices and their service have two distinct differences with regards to when and why they can be served:
- A Section 21 notice, which has been discussed in a previous article, can only be used if the landlord wishes to end the AST on or after the last day of the fixed term of the tenancy has expired and does not require the tenant to have done anything wrong: whereas
- A Section 8 notice can be served at any time during, or after, the fixed term of the AST has expired and requires the landlord to have a justification for being able to determine the tenancy.
Section 8 Notice
Landlords in England and Wales are able to use a Section 8 notice, often known as an “eviction notice,” to end an AST when a tenant’s action (or lack of) fall within one of the justifications for serving a Section 8 notice. Some of the justifications relate specifically to situations where the tenant has breached a term of the AST. Rent arrears, property damage, and noise complaints are, in our experience, the most common justifications for serving Section 8.
In this article, we will be discussing the service of a Section 8 notice on the tenant and specifically the right to serve this notice because the tenant is in rent arrears. If you would like to have more information on the other 16 reasons for ending am AST using a Section 8 notice then please refer to the previous Articles or contact us and we will arrange for a copy of the relevant Articles to be forwarded to you.
In order to regain possession of their property due to the tenant being in rent arrears, there are a couple of steps that need to be taken. The first step in this process is to serve a Section 8 notice of possession on the tenant.
The notice must be written in a particular manner; else, the court proceedings will be dismissed. The tenant has two weeks to pay the arrears listed in the notification. After that, actions for both a possession order and a monetary judgment in respect of the rent arrears could be filed.
When can a landlord serve a Section 8 Notice?
A landlord can serve a Section 8 notice at any time during the tenancy, as long as there is a valid ground to evict the tenant which falls within one of the 17 reasons referred to above.
When it comes to renting arrears, the notice can only be used if the tenant is two months or more behind on their rent (or eight weeks for a weekly tenancy) and importantly the tenant must still be in arrears of two months/eight weeks at the time of the hearing. If the monthly rent is £500, the rent arrears must be at least £1,000, for example.
How to serve a Section 8 notice?
Landlords wanting to evict their tenants due to rent arrears should follow the correct legal process by filling in a Form 3 seeking possession of the property for which the two months rent arrears have arisen.
So when exactly can the tenant be deemed to be two months in arrears of rent? If the rent is paid in advance, as soon as the payment is missed, the tenant is in rent arrears for the entire period. If the rent is paid monthly on the first day of the month, the renter will be one month in arrears on the second day of the month. As a result, if a tenant pays monthly, this notice might be given after a month and a half of non-payment.
Before using this notice, the landlord should use every chance to inform a tenant that they are in breach of the tenancy agreement, such as sending reminder letters at 7-, 14-, and 21-days intervals.
- On the completed Form 3 the landlord will advise the tenant of:(we would think not for the first time!) the reason that they wish to end the AST;
- the date upon which the notice expires; and
- the fact that the landlord requires possession of the property on the date which the notice expires
The landlord may also wish to include with the notice final rent reminder statement.
If the tenant has been regularly making late payments, a Section 8 Notice can be issued, as long as the cumulative rent arrears equal two months’ rent. For example, if a tenant has paid half the rent for four months, they will be in two months’ rent arrears, the date after the fourth month’s rent was due, and a landlord can serve a notice on them.
If the rent arrears history is complicated, landlords may find it helpful to send the tenant a schedule of arrears that explains how the arrears were computed. Although a Section 8 notice will not be invalid if a landlord does not provide the tenant with this information, it is good practice as it will bring to the hopefully mean that any issue the tenant has with the calculation of the rent arrears can be dealt with during the notice period as opposed at the hearing.
The tenant should be served the Section 8 notice in accordance with the term of the AST in respect of the means of service and the notice period given to the tenant to determine the tenancy. That being said, landlord need to be aware that any clause in an AST that purports to vary the notice that a landlord has to give a tenant, so that less notice is required than given in the Housing Act 1988, will be deemed invalid. With regards to the means of notice, a standard AST will usually require that the Section 8 Notice be either handed directly to the tenant, placed through the property’s door or sent by first-class mail. The notice should also be served on any guarantor referred to in the AST.
The landlord should ask the tenant to acknowledge safe receipt of the Section 8 Notice to avoid claims that the notice was not received and we would make the following recommendations in order to ensure that a landlord reduces the risk of a tenant being successful with a claim that they never received the notice:
- The landlord should keep a copy of the notice, as well as a record of the date and method of service, as well as the identity of the person who served it and any witnesses;
- if serving in person, have a witness present;
- If using the postal service, it is recommended that the notice be delivered with proof of delivery and that the recipient be given at least three working days to receive the notice;
- If the landlord is seriously concerned that a tenant may dispute delivery, we would recommend that process server be used to hand deliver the notice. Shergroup will organise a process serve for you if required by you.
How much notice do you need to give?
In England, the notice to leave the property that needs to be given by the landlord to the tenant varies depending on the justification for serving the Section 8 notice. With regards to rent arrears, the landlord must give the tenants at least 2 weeks’ notice to leave the property.
If you would like more information regarding other notice periods, this can be found in the ‘Technical guidance on eviction notices’.
Who should the Section 8 Notice be addressed to?
The names of all tenants named in the AST must be included in the notice, and the parties’ names must match those in the tenancy agreement. Even if some tenants have moved out, if they were named on the most recent tenancy agreement, they should still be listed on the notification although, if they have been formally released from the AST, there is no need to serve the notice on them.
Each tenant must be provided with a notice as an added precaution. If the tenant is renting a room in a shared residence, the landlord must identify the room (for example, ‘room 1’) and the full property address.
The Section 8 Notice must have all pertinent information, as there are a number of typical errors that will likely result in the court rejecting your application. These include:
- Failure to use the most up-to-date form.
- Failure to give the full and proper address of the property on the form.
- Failure to list every tenant in cases of joint tenancy.
- Failure to provide details of the claim; for example, a payment schedule showing which payments have been missed.
- Failure to state the grounds exactly as they appear in the Housing Act.
What happens after a Section 8 notice has been served?
The majority of the time, when a tenant receives a notice, they vacate the property to avoid having to go to court. If this is not the case, the landlord should submit an application to the court requesting an order for possession be granted. The court will then set a hearing date. If, at the time of the hearing, the tenant is in at least 2 months rent arrears the court has to grant the possession order. Bailiffs and police may be called in to guarantee that the tenant departs the premises and that there is no breach of the peace.
Dismissed at the door!
One tactic tenant have been known to use is to reduce the rent arrears to less than 2 months’ rent before the hearing so that the case is dismissed. If the tenant makes a contribution to the rent, even an insignificant amount, which results in the rent falling below 2 months arrears the claim will be dismissed. There is little that a landlord can do to protect against this happening so we would recommend when serving the Section 8 notice the landlord not only refers to the breach of the AST because of the rent arrears but also late payment of rent. This will enable a landlord to proceed with his claim on the lesser ground of late payment of rent which is preferable to having the case dismissed!
If you need to recover your rent arrears and seek possession of your property, then Section 8 notice is for you. Though eviction is not a straightforward process and there will be times when you feel overwhelmed, Shergroup is here to help you with both recovering your rent arrears and helping you gain possession of your property.
Our eviction experts deal with the whole process professionally and safeguard your rights as a landlord. We offer a complete end to end service including issuing a Claim for Possession, obtaining an Order, and enforcing the same. We can even arrange the service of the Notice for a fixed fee or to review your documentation in order to ensure that you have everything in order before issuing the notice. There is little more frustrating than finding that your notice is invalid because of missing documentation after expiring of the notice period – so let us eliminate the possibility for you!
You can book a no-obligation FREE call with our friendly business solutions advisors to know more about our Tenant Eviction solution.
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