Section 8 and Section 21 Notices are two methods by which a landlord can ask a tenant to vacate a property where the tenant has an assured shorthold tenancy agreement. Both Notices are governed by the Housing Act 1988.
Landlords can serve a Section 8 Notice and a Section 21 Notice alongside one another or individually.
Section 21 is often the preferred Notice as it is a more straightforward route to remove a tenant. Following this notice, a landlord may use what is known as the ‘accelerated possession procedure’.
Both Notices have distinct protocols, and it is important to choose the right one. Arriving at the right decision usually requires taking professional legal advice.
Here are the key differences between the two Notices.
Giving a reason for the notice
A Section 21 Notice warns the tenant that they will need to vacate the property after a stipulated period, and the landlord is not required to give a reason.
A Section 21 Notice is commonly used when the landlord wants to take back possession of the property for renovation, refurbishment or sale. The landlord may also wish to live there themselves.
A Section 8 Notice must give a reason (or reasons) described as ‘grounds for possession’. Landlords often use a Section 8 Notice when the tenant breaks the terms of the tenancy agreement. In such cases, breach of contract is cited as the reason for the repossession of the property.
A Section 8 Notice provides 17 possible grounds for possession, all listed in Schedule 2 of the Housing Act 1988. The first 8 of these are mandatory. If the landlord can demonstrate clear evidence of a mandatory ground for possession, the tenant must vacate the property.
Grounds 9-17 of a Section 8 Notice are discretionary. The court must apply a test of ‘reasonableness’. If the court upholds the landlord’s claim as fair, the tenant must leave the premises.
Challenge from the tenants
Even if the tenant is in breach of contract, landlords sometimes prefer to serve a Section 21 Notice. It is harder for the tenant to challenge a Section 21 notice in the courts as no reason for eviction is given, so the landlord does not have to show that any ground for possession is made out.
If the tenant challenges a Section 8 Notice in court the eviction may be delayed and incur substantial legal fees.
Covid-19 lockdowns resulted in a ban on evictions, but the ban was lifted on 1 June 2021.
When can a Section 8 or Section 21 Notice be served?
A landlord can serve a Section 8 Notice at any point during the tenancy. The notice period can vary in length from weeks to months, depending on the grounds for possession. For certain violations, possession proceedings can be issued immediately following the notice being served.
A landlord cannot serve a Section 21 Notice during the first four months of a tenancy or to expire before the end of the fixed term of the tenancy. The notice period is two months.
Conclusion
It is essential to take legal advice to determine the best Notice to serve to regain possession of a property. Serving the wrong Notice may delay vacant possession being obtained and incur unnecessary costs. Strategically, serving both a Section 8 and a Section 21 Notice may be necessary.
Helix Law’s specialist team can provide comprehensive and targeted advice to landlords and tenants and also ensure the correct service of Notices to gain the desired outcome.