Section 8 or Section 21 – which is best for me?
The Housing Act 1988 provides the two most commonly used avenues by which a landlord can seek to evict a tenant.
Namely, within section 8 and section 21 of the Act. When making a choice between the procedures, many factors must be taken into consideration, including whether the landlord wishes to recover arrears from the tenant, the type of tenancy and whether the landlord has met the requirements of the section 21 procedure.
The below article compares the key considerations of each procedure to assist landlords in selecting the most beneficial depending on their circumstances:
Section 8 provides a notice to be served upon a tenant if one of the seventeen grounds defined within the Housing Act has been satisfied.
Grounds 1-8 are mandatory, i.e. if the ground is satisfied, the court must grant possession of the property to the landlord. The mandatory grounds include that the landlord requires the property back to again use as their main residence or that the tenant has fallen into two months’ rent arrears in the case of rent being paid monthly.
Grounds 9 to 17 are discretionary. Unlike the mandatory grounds, the court will only grant possession if reasonable to do so. The discretionary grounds include again that the tenant is in at least 2 months’ arrears in the case of rent being paid monthly. Another commonly relied upon ground is that the tenant has breached any terms of the Tenancy Agreement.
Section 21 provides a ‘no fault’ eviction procedure.
It is not necessary for a tenant to have fallen into arrears or have otherwise breached the Tenancy Agreement to make use of the section 21 procedure.
We now apply some key considerations of a landlord and compare these between both sections:
Speed of Eviction
Both the section 8 and section 21 procedures require a notice to be served upon the tenant. Following the service of that notice, a notice period must be respected, following which, if the tenant has failed to vacate from the property, the landlord is able to proceed to court to issue possession proceedings. It is important to note the differentiation in the notice periods of both sections:
Section 8 provides a variation in notice periods depending on the ground relied on by the landlord. This variation is from a period of two weeks and two months. However, positively, the most commonly used grounds 8,10 and 11 relating to rent arrears, attract a notice period of only two weeks.
In contrast, the section 21 procedure in all cases requires a notice period of two months.
Whilst the above clearly promotes the use of the section 8 procedure, following the expiry of the notice period, the position if court proceedings are required, must be considered.
As the section 21 procedure provides a ‘no fault’ eviction, unless a tenant advances a defence to the court proceedings as to why they should not be evicted, the court will generally grant possession of the property without the need for a hearing.
As to the section 8 procedure, a short court hearing is required to assess the validity of the notices and the application of the ground/s relied upon. Generally, a hearing date is listed within one to two months of court proceedings being instigated.
Recovery of Rent Arrears
As outlined, landlords often rely on the existence of rent arrears to instigate the section 8 procedure. Naturally, it is therefore possible for a landlord to seek both possession of the property and the accrued rent arrears as they fall due as at the date of any hearing.
On the other hand, the section 21 procedure only allows for the court to order possession of the property. Rent arrears from a tenant cannot be recovered, no matter how substantial, under any circumstances.
Certainty of Gaining Possession
As detailed, the section 8 procedure requires the court to find that aground for possession is satisfied. However, the satisfaction of the ground relied upon can be contested by a tenant, bringing with it uncertainty as to whether possession will be granted by the court, particularly given the discretionary nature of some grounds.
A further point to consider is if grounds pertaining to rent arrears are relied upon. It is necessary, when rent is payable monthly, for at least two months’ arrears to fall due at the time of the hearing. Whilst rent arrears may exist at the time at which notices are served, ultimately, in the event that a tenant makes a small payment to reduce the level of arrears below the two-month threshold, the ground for possession is defeated and the landlord may be forced to start from the beginning and re-serve notice upon the tenant.
As to section 21, whilst we have made mention of the fact that a tenant may enter a defence as to why they should not be evicted, it is rare for a court to fail to order that possession be granted provided that the landlord has served valid notice and supporting documents (Energy Performance Certificate, Gas Safety Certificate, How to Rent Guide).
Owing to the comparative certainty of the section 21 procedure, the costs of a landlord in obtaining possession can be more accurately anticipated. We offer a fixed fee of £1,500 + VAT for our instruction when acting for clients in section 21 matters, which includes the drafting and service of the notices and continues throughout the process until such time as possession is granted.
On the contrary, it is more difficult to budget when using the section 8 procedure. Ultimately, a hearing must be attended, at which it would be advisable to instruct representation. Thereafter, if the claim is contested, further hearings may be required to conclude matters, which contributes to additional correspondence and costs.
Am I prevented from using the section 21 Procedure?
It is important to note that the section 21 procedure applies only to property rented out on an Assured Shorthold Tenancy (AST).
Furthermore, following a change in legislation, all tenancies granted after 1 October 2015 require tenants to be served with the following at the outset of a tenancy:
- Energy Performance Certificate (EPC)
- Gas Safety Certificate
- The current version of ‘How to Rent: The Checklist for Renting in England’ (How to Rent Guide).
- The Prescribed Information.
- A Tenancy Deposit Certificate.
If a landlord cannot produce the above, they will be unable to make use of the section 21 procedure and shall instead be directed to proceed via the section 8 procedure instead.
“Recovering possession of a residential property is understandably a distressing time for a landlord, particularly when significant rental arrears have accrued. Making a choice as to the most appropriate procedure under which to serve notice can be difficult for landlords, particularly if they have never previously navigated the process.
At M&P we regularly advise clients as to the most sensible, timely and cost-effective course of action applicable to their circumstances. We can be instructed from the outset to review a client’s paperwork and confirm its compliance with legislation to avoid later issues and delays. Thereafter, we can complete the drafting and service of the relevant notice and can act on your behalf at any subsequent court hearing. Our fixed fee also includes the instruction of bailiffs to recover possession if such is necessary.”