SECTION 8 NOTICE (Fault Based Possession i.e. Arrears)
The first type of possession is “FAULT BASED” and means the tenant has broken some term of the tenancy. Fault based possession can be started at any time in the tenancy term. We do not recommend landlords to follow this procedure without instructing a solicitor as can be quite complicated.
On this page we explain in more detail exactly what a section 8 notice is (which deals with fault based possession), steps to serving a section 8 notice and N5/N119 court forms.
What is a Section 8 notice?
A ‘Section 8 notice’ is also known as a ‘section 8 possession notice’, because it operates under section 8 of the Housing Act 1988. A section 8 notice can only be issued to a tenant who has breached the terms laid out in the tenancy agreement and if certain conditions have been met, the most common being one involving rent arrears. The Housing Act 1988 provides 17 grounds on which a landlord may seek possession before the fixed term of tenancy has finished.
Examples of mandatory grounds for possession
(These grounds for possession apply to tenancies entered into after 15 January 1989)
Ground 1 can only be used once the fixed term has ended. It can be used if the property to be repossessed was, or after the let is intended to be, returned to the landlord as their own home. For this ground to be successful the landlord must have notified the tenant in writing in the AST or an addendum before the tenancy started, that he intended one day to ask for the property back on this ground and the tenant must have signed in agreement to this.
Ground 2 relates to a lender’s right to possession. If the property is subject to a mortgage the landlord will often be required to serve this notice on the tenants.
Ground 3 requires that the fixed term is less than eight months and the property has been let as a holiday home within the preceding 12 months.
Steps to serving a Section 8 notice
If a tenant has failed to pay rent after making requests for them to do so, consider serving a Section 8 notice. This notice will demand that the tenant pays any rent arrears in full within a certain period (14 days although it is always best to allow a day for service, the 14 day period and at least 1 other day. The notice period does however vary depending upon the ground relied upon. If the rent is due monthly, it is a month overdue the next day. If the tenant misses the next monthly payment, then the day after that payment is missed you can issue the notice. You do not have to wait until the end of the month.
Tips for serving a Section 8 notice
- Do not post
- Do not send by Recorded Delivery
- Take an independent witness and deliver by hand in an envelope
- Show witness what is in the envelope i.e. Section 8
- If handed to tenant, if possible get the tenant to sign for receipt on their copy and yours. When handed to tenant personally, it is considered to have been served on that day
- If posted through the letterbox get witness to photograph this with a digital camera, displaying the date on the photograph. Also if possible get the flat / house number in the photograph. The notice is considered to have been served the next working day when posted through the letterbox
The Section 8 notice expires 14 days after it is served, unless it is for nuisance when it expires 1 day after it is served. If the tenant does not pay the rent within the period stipulated on the Section 8 notice, think about applying to the court for an order to evict the tenant. The order will also demand that the tenant pay any outstanding rent and may also demand that he/she pay the costs in applying to the court.
If the notice was served by a third party (e.g. agent) on behalf of the landlord, the third party will need to complete Court Form N215 “Certificate of Service” as the landlord will need this when applying for the Possession Order.
The day after the notice expires you then complete both Court forms N5 and N119.
10 days before the court hearing, complete the witness statement and attach to it all documents referred to in the witness statement, indexing them as indicated in the witness statement. Also update the arrears position as it will be on the date of the hearing. Send a copy to the tenant and the court (important: include the case number on both copies).
Quality Lets can help you to complete your forms and if your tenanted house is within 20 mile radius of our offices we can also hand deliver your section 8 for you whilst providing evidence of this.
For your free section 8 notice please contact Elizabeth at Quality Lets on: 07380849807 or firstname.lastname@example.org