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Dealing with Rent Arrears: Section 8 Notice v Section 21 Notice

A landlord wanting to end an Assured Shorthold Tenancy and regain possession of their property can use either a section 8 notice (Notice to Quit) or a section 21 notice (Notice of Possession), or, depending on the circumstances we might advise serving both and deciding which to rely on as the matter progresses.

So what do you need to be thinking about when deciding which way to go?

Section 8 Notice

A section 8 notice can only be used if the tenant is in breach, which clearly they are if they are in arrears with paying their rent. The tenant must owe at least two months’ rent at the time the notice is served, and if they clear the arrears down below this level before the court hearing then the notice can no longer be relied on.

As a section 8 notice requires a court hearing, matters can be further delayed if the tenant files a defence, even if the defence is ultimately struck out.

Whilst there are some mandatory grounds of possession, which means the court must grant possession if the ground is proven (for example, if the landlord wants to use the property as his own home), arrears of rent is a discretionary ground which means the court will listen to any arguments the tenant may raise and may decide that issuing an order for possession is not appropriate in the particular circumstances.

A couple of significant advantages of the section 8 notice are that there is no restriction on when in the course of a tenancy it can be served, and that the Landlord only needs to give 21 days’ notice before the application for the possession order can be made.

If a court decides in the landlord’s favour, an order for possession will be granted. The order will also provide for the recovery of the rent arrears, which the Landlord may then enforce if the tenant does not make payment.

Section 21 Notice

The section 21 procedure is a paper based process. It can be a simpler way to proceed as there are no reasons to be given and no grounds to prove. The tenant can’t defend the action – if the application is valid, possession must be granted.

However there are other complications that might make the service of a section 21 notice less attractive. For example, the landlord must have properly protected any tenancy deposit, and if the tenancy began after 1 October 2015 the landlord must have provided the tenant with certain documents including an energy performance certificate, gas safety certificate and the correct version of the government’s How to Rent guide.

You can fix any of these issues and then serve the section 21 notice but it might be simpler to proceed with the section 8 notice.

A section 21 notice is subject to certain restrictions as to when it can be served, for example only after the end of a fixed term tenancy. The Landlord is also required to give the tenant two months’ notice for them to leave the property.
Regaining possession of a property using a section 21 notice will not provide for recovery of rent arrears – a separate application would need to be made by the Landlord to recover the rent.

We can help you to balance the chances of success against the complexity of the case and the potential time scales so that you opt for the appropriate notice in your particular case. If you need to take separate action to recover rent arrears aside from gaining possession then we can also assist with that. Please speak to Philippa McDonald.