How Landlords can end a Tenancy Agreement by serving a Section 8 Notice

Ellery Tonner Law

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10 November 2021

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Ideally, a landlord wants to let their property out to tenants who pay their rent on time, keeps the property in repair and does not make a nuisance of themselves to the neighbours.??Unfortunately, not all tenants play by the rules which can often cause landlords a whole lot of problems.?What then, can a landlord do if they have a tenant who does not pay their rent, and breaches the terms of the tenancy agreement?

A landlord may terminate an Assured Shorthold Tenancy (“AST”) using the procedure under section 8 of the Housing Act 1988 (“the HA”) known as a “Section 8 Notice”.

The actual content of the Section 8 Notice is a proforma document, described as “Form 3” published by the Department for Levelling Up, Housing and Communities.

Form 3 was recently updated and came into effect from 1 October 2021.?It is important to ensure that the correct version of the form is used otherwise it may not be possible to obtain a possession order.

During the Covid 19 pandemic, the ability of landlords to serve a Section 8 Notice and issue possession proceedings to recover the property back from a tenant has been restricted by the provisions of the Coronavirus Act 2020.?This guide concentrates on the current position in England as at the date of publication.

1.???????????There must be grounds for possession

The Section 8 Notice informs the tenant of the grounds the landlord is relying upon to bring the AST to an end and recover possession of the property.

?The grounds for obtaining possession are set out in Schedule 2 to the HA.

?There are some grounds that are mandatory, which mean that the court must grant an order for possession if the landlord can prove the ground.?However, the other grounds are discretionary which means that if the landlord can prove the ground, the court has discretion over granting an order for possession or not.?It all depends on what the court considers reasonable based upon the evidence that the landlord presents.

A landlord must not attempt to or evict the tenant from the property without first obtaining a court order.?It is illegal to do so because of the provisions of the Protection from Eviction Act 1977.

If the tenant does not leave the property by the date specified in the Section 8 Notice, the landlord must then commence possession proceedings to obtain an order from the court.

At the possession hearing, the court will look at the ground(s) the landlord is relying upon and assess if the landlord has proven the ground(s) based upon the evidence presented.

So then, what are the grounds that must be proven by a landlord?

2.???????????Mandatory grounds for possession

The court must grant a possession order if the landlord can prove any of the grounds below.

?Ground 1

The landlord occupied the property as their only/principal residence before the tenancy started or the landlord requires the property back to live in as their principle residence.

Ground 3

The tenancy is for a fixed term of no more than 8 months and was occupied as a holiday let during the 12 months before the tenancy started.

Ground 4

The tenancy is for a fixed term not exceeding 12 months and was let by an educational establishment during the 12 months before the tenancy started.

Ground 6

The landlord intends to demolish or reconstruct the whole or a substantial part of the property or carry out substantial works which cannot be carried out with the tenant there.

Ground 7

The previous tenant has died, and the tenancy has passed to a new tenant under a will or intestacy, but the new tenant is not entitled to the tenancy under the law of succession.

Ground 7A

Any of the following conditions are met:

The tenant, or a person residing in or visiting the property

a.??????Has been convicted of a serious offence committed (i) wholly or in partly in or near the property (ii) against someone with a right to live in the vicinity of the property or (iii) elsewhere against the landlord.

b.??????Has breached a provision of an injunction granted under section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014 and the breach occurred (i) in the property (ii) elsewhere but the breach caused nuisance or annoyance to someone with a right to live in the property or in its locality or to the landlord.

c.??????Has been convicted of an offence under section 30 of the Anti-Social Behaviour, Crime and Policing Act 2014.

d.?????The property has been subject to a closure order under section 80 of the Anti-Social Behaviour, Crime and Policing Act 2014.

e.??????The tenant or a person living in, or visiting the property, has been convicted of an offence under sections 80(4) or 82(8) of the Environmental Protection Act 1990 and the nuisance in question amounted to noise that constituted statutory nuisance.

Ground 7B

Both conditions are met

a.??????The Secretary of State has given a written notice to the landlord that the tenant, or any other adult occupier of the property is not entitled to do so as a result of their immigration status.

b.??????The person or people named in the notice both of the following

i.???????????????????Is the tenant or other adult occupier of the property and

ii.?????????????????Is disqualified because of their immigration status from occupying the property

Ground 8

Rent is unpaid at the time of the service of the Section 8 Notice and at the date of the hearing:

a.??????If rent is paid weekly or fortnightly, at least 8 weeks rent is unpaid

b.??????If rent is payable monthly, at least 2 months’ rent is unpaid.

c.??????If rent is payable quarterly, at least one quarter’s rent is more than 3 months in arrears.

d.?????If rent is payable yearly, at least 3 months’ rent is more than 3 months in arrears.

3.???????????Discretionary grounds for possession

If the landlord can prove any of the grounds below, the court may grant a possession order

Ground 9

Suitable alternative accommodation is or will be available for the tenant when the possession order is granted.

Ground 10

Some rent was unpaid by the tenant when the Section 8 Notice was served and has not been paid by the time the possession proceedings are begun.

Ground 11

The tenant has persistently delayed paying rent.

Ground 12

Any obligation of the tenancy (apart from non-payment of rent) has been breached or not performed.

Ground 13

The tenant, or anyone living with the tenant has allowed the property to deteriorate.

Ground 14

The tenant or any other occupier at the property with the tenant has caused a nuisance to neighbours or the landlord, or has been convicted of using or allowing the property to be used for immoral or illegal purposes or has been convicted of an arrestable offence which was committed around the property.

Ground 14ZA

The tenant or any adult living at the property has been convicted of an indictable offence which took place at a riot in the UK.

Ground 14A

The property was occupied by a couple who were living together as a married couple or civil partners and:

a.??????One (or both) is a tenant

b.??????The landlord is a social or charitable housing landlord

c.??????One partner has left the property because of violence or threatened violence by the other towards that partner or a member of the family who was living with that partner, and

d.?????The court is satisfied that the partner who has left is unlikely to return.

Ground 15

The condition of any furniture at the property has deteriorated due to ill treatment by the tenant.

Ground 16

The property was let to the tenant as part of their employment with the landlord and is no longer employed by the landlord.

Ground 17

The landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by the tenant.

4.???????????What landlords need to watch out for

Here are some potential issues which a landlord needs to be aware of before serving a Section 8 Notice

Notice before the tenancy starts

If a landlord wishes to rely on grounds 1, 3 and 4, the landlord must service prior notice upon the tenant.?It does not have to be in any specific format so long as it is in writing.?However, if the court considers that it is reasonable based on the circumstances, it can dispense with the notice requirement in relation to ground 1.

The Debt Respite Scheme Regulations

The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium (England and Wales) Regulations 2020 (SI 2020/1311) provide a various amount of protection for people with debt who obtain a breathing space moratorium or a mental health crisis moratorium. This limits the ability of the person to whom money is owed (“a creditor”) from taking enforcement action in relation to the debt that accrues during the moratorium.

Where a tenant has obtained a moratorium, the landlord is prevented from serving a Section 8 Notice based on grounds 8, 10 or 11 in relation to any rent that is classed as “moratorium debt”.?This means rent that was owed at the time the tenant applied for the moratorium.

If a Section 8 Notice was served on the tenant on grounds 8, 10 or 11 before the moratorium started but the tenant subsequently applies for a moratorium, the landlord cannot commence possession proceedings until the moratorium ends.

If possession proceedings had already been commenced and the tenant subsequently obtains a moratorium, the landlord must tell the court that there is a moratorium in place.?Although this will not stop the possession proceedings, the court will not allow any action to enforce an order or judgment concerning a moratorium debt whilst the moratorium remains in place.?Therefore, although a possession order can be granted by the court it will not be possible to enforce it by instructing bailiffs to evict a tenant until the moratorium ends.

The tenant is still obliged to pay rent during the moratorium period and, if they fail to do so, then there is a risk that the moratorium may be cancelled.?

5.???????????How much notice must be given to the tenant to leave the property

The amount of notice that a landlord must give to a tenant depends upon which ground is being relied upon.?The below sets out the notice period required for each ground.

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Ground being relied upon Notice Period

?1, 5, 6, 7, 9 and 16 2 months

3, 4, 7B,, 8, 10, 11, 12, 13, 14ZA, 14A, 15 and 17 2 weeks

7A 1 month

14 Immediate

Possession proceedings cannot be issued any earlier than the notice period stated in the Section 8 Notice in accordance with the above.

If any part of the Section 8 Notice is wrong, potentially, it means that it is invalid and it is unlikely that the court will grant a possession order.??If the court refuses to grant a possession order then the tenancy will continue and, if the landlord still wishes to evict the tenant, then the landlord will have to serve a fresh Section 8 Notice and begin the process again from the start.

6.???????????In conclusion

Before serving any notice upon the tenant, the landlord must first check whether there are grounds to do so, ensure that the correct version of Form 3 is used and also the correct notice period is given.?It is also worth considering instructing a process server to personally serve the Section 8 notice upon the tenant.

If you need help preparing a Section 8 Notice, do get in touch with our dispute resolution experts.