At a glance
What is Section 8?
A landlord can evict a renter under an Assured Shorthold Tenancy at any point during a tenancy, including during any fixed-term period, by serving a a notice under Section 8 of the Housing Act 1988.
The landlord can serve a Section 8 Notice even if they haven’t complied with the mandatory landlord obligations that a Section 21 Notice requires.
However, unlike termination under Section 21, which can be carried out on paper, a Section 8 possession always requires a court hearing. Statistics from March 2022 show that the average time between a claim for a possession order and and possession is 27 weeks (source: Ministry of Justice).
What is a Section 8 Notice?
It’s a notice that a landlord sends to their tenants of their intention to begin proceedings for possession of a property under Section 8 of the Housing Act 1988 in England, if they don’t vacate the property on the expiry of the notice. The notice must be on Form 3, which landlords obtain from the gov.uk website.
The Notice must rely on one or more of a list of 17 different grounds listed in Schedule 2 of the Housing Act.
The Grounds for Possession under Section 8
There are two different categories of grounds under Section 8: mandatory grounds where the court has no discretion, and discretionary grounds where it does.
With mandatory grounds, if the landlord can prove the relevant ground, the court has no choice but order possession. Here are the key mandatory grounds:
- Ground 1 – owner occupation where it was previously the owner’s primary residence and the didn’t buy the property during the current tenancy.
- Ground 2 – repossession by lender
- Ground 6 – redevelopment
- Ground 7A – antisocial behaviour
- Ground 8 – serious rent arrears where the rent is payable monthly and at least two months’ rent remains unpaid. It must be both when the Section 8 notice is served, and at the time of the hearing for a possession order.
With these grounds, on the other hand, the court has discretion whether to grant possession, taking into account what is reasonable in the circumstances. The court also has wide powers of adjournment in cases involving discretionary grounds.
Here are the key discretionary grounds:
- Ground 10 – ‘some rent’ is and remains unpaid.
- Ground 11 – the tenant has failed repeatedly to pay rent on time. There doesn’t have to be rent arrears at the time the possession proceedings start.
- Ground 12 – breach of any term of the tenancy agreement, other than rent.
- Ground 13 – deterioration of the condition of the property or any of the common parts due to the tenant’s action or inaction, or someone living there, and the tenant has failed to remove that person.
- Ground 14 – nuisance, annoyance to neighbours or visitors to the area, conviction of using the property for immoral or illegal purposes, or a conviction of an indictable offence (a serious offence usually heard in the Crown Court) in the local area.
How to go about serving the notice
The landlord must serve notice using Form 3, and cite in full the specific ground or grounds they wish to rely on. Also, the landlord needs to include a ‘full explanation’ as to why they are relying on each ground. Any error made when issuing the Section 8 notice is likely to delay the landlord gaining possession of the property.
The notice must specify a notice period. The earliest date will vary according to the grounds, but it’s usually either two weeks or two months after service. Click here for government guidance on the minimum period for each of the grounds for Form 3.
The landlord must serve a separate Section 8 notice on each of the renters (and keep a copy). It’s important to keep evidence of serving the notice for use in court, if need be. It can be done by hand, courier, registered post and even by regular post.
If served by first class post, try avoid any dispute as to whether or when it was sent. A simple way is to ask for proof of posting from the Post Office. Also, take a photo of you (or someone else) handing over the envelope at the Post Office. The law deems the notice to be served the second day after it was posted. If that’s not a business day, it will be the next business day.
For serving the notice in person, it’s best to go with a witness, and take a photo of the envelope being posted through the letter box of the property. If the tenant isn’t at the property or refuses to acknowledge receipt, complete a certificate of service (N215) form.
If the tenant doesn’t leave by the date specified in the notice, the landlord cannot go and evict the tenant themselves. Instead, they will need to obtain an order for possession from the court.
After the landlord has served the Section 8 Notice, they must wait until the minimum time period has expired before issuing court proceedings. This is the date on the notice plus a minimum of 14 days.
If the tenant hasn’t left the property, or paid up rent arrears by then (if Ground 8 or 10), the landlord can now start possession proceedings with a claim for possession. Note that landlords must not do this if they’ve been notified the tenant is in a Breathing Space. For more information, click here for government guidance.
Assuming the tenant isn’t in a Breathing Space, the landlord can start proceedings using the standard forms N5 and N119. The landlord then has the choice of posting the forms to the local county court or doing it online with the Possession Claims Online (PCOL) process.
The next stage is the court hearing, when it will decide whether or not to grant a possession order.
If the tenant doesn’t move out by the date set by the court in the possession order, the landlord will need to take enforcement action by obtaining a warrant for possession.
A landlord can do this by completing a warrant for possession (Form N325) and sending it to the same court that heard the possession claim.
The final stage is repossession, or enforcing the order, by appointing court bailiffs.
The process from submitting the claim to achieving repossession takes on average 27 weeks (March 2022).
Renters Reform Bill proposals
The Renters Reform Bill is currently going through parliament, and contains wording that will stop landlords from serving so called “no fault” evictions under Section 21. This means that landlords would only be able to use Section 8 when the Renters’ Reform Bill becomes law. (Click here for the estimated timing of when Section 21 will be abolished).
However, the Renters Reform Bill contains new or revised Grounds of Possession under Section 8. These are the key ones:
- Repeated serious arrears
- Landlord or close family member moving in
- Sale of property
- Anti-social Behaviour
For a full list of what the Grounds for Possession will look like, based on the current draft of the Renters Reform Bill, take a look at this straightforward analysis with tables showing what’s new, revised and unchanged, with the relevant notice periods. I have also written a detailed but practical explanation of how the new Section 8 will work in practice for landlords who wish to terminate a tenancy and gain possession of their property.
Finally, this is a very general overview of how to obtain possession of a property using Section 8. However, it’s not legal advice. Although it’s possible to do it yourself, unless you have a lot of experience, it’s best to seek expert advice to help you jump through the hoops. My first port of call is always the NRLA Helpline. Click here to find out more about joining the NRLA if you’re not already a member.
Last updated: 2 June 2023