Section 21 or Section 8
An assured shorthold tenancy gives the tenant no security of tenure. In other words, it is relatively straightforward to obtain a possession order by commencing proceedings. An assured shorthold tenancy can be terminated principally by reliance on section 21 or section 8 of the Housing Act 1988 (as amended).
Under section 21, (once the initial fixed term of the tenancy has expired) the tenancy can be terminated by giving the tenant not less than 2 months’ written notice. That is a formal notice, which we draft on your behalf and serve on the tenant. It does not state that there are any arrears of rent or that there has been a breach of the tenancy. Essentially it allows a landlord to evict a tenant without needing to give a reason or justify the decision to evict. It is therefore the best route if a landlord wants possession in order, say, to let the property to someone else or to sell the property.
The expiry date of the notice is dependent on the date the notice is given, upon the dates of the original agreement and of any subsequent agreements and/or upon the due date for the rent to be paid. We will ensure that the dates in the notice are correct and that is why we will need at the outset to see any written tenancy agreement and the tenancy deposit details.
Once a notice has been served, we must wait until it has expired. We are able then to apply to the court for a possession order, all being well by an accelerated process applicable specifically to assured shorthold tenancies. All the necessary paperwork and correspondence are dealt with by us. It is, however, not uncommon for tenants to leave without the need for a court order, once the initial notice has been served.
Once the papers have been received by the County Court, copies are sent to the tenant. If the tenant has a defence, he/she should notify the court within 14 days. If the court feels that there may be an arguable defence, it will list the matter for a hearing. However, most tenants do not have a valid defence. For example, inability to pay rent because of an employment problem is not a defence. In those instances where a section 21 eviction is successfully defended it is usually because the original notice was defective or the deposit was not paid into a tenancy deposit scheme as required by law.
If the section 21 route is used, you cannot make a claim for rent arrears. However, because a section 21 claim is not easily defended, it may be more cost effective to evict your tenant by that means and then to instruct our debt recovery service to recover your rent arrears.
Section 8 is the appropriate section to use when the tenant has broken a term (or terms) of the tenancy agreement, e.g. to pay rent. In fact, most evictions through the section 8 procedure are due to non-payment of rent.
The first step is for a notice to be served on the tenant, seeking possession. The notice must be in a prescribed form and, if it is not, the ensuing court proceedings will be invalid. Although it is not the only basis for issuing a notice seeking possession, in what follows we concentrate on non-payment of rent.
In the notice seeking possession we would give the tenant 2 weeks to bring the arrears up to date, after which time proceedings would be brought for both a possession order (to obtain possession of the property) and a monetary judgment in respect of the rent arrears.
A drawback of the section 8 procedure is that the accelerated process referred to above is not available and therefore the court will list the matter for a short hearing, usually several weeks ahead. Often a tenant will not attend the hearing, with the result that a final possession order will be made in his/her absence, requiring possession to be given up within 28 days. A tenant who does attend will often argue that he/she cannot afford to pay much towards the arrears. If he/she is able to offer an amount towards the arrears which the court considers reasonable, on top of the usual monthly rent, the court has a discretion not to make a final possession order, but instead will probably make a suspended order for possession, i.e. an order suspended on condition that the tenant maintains regular payments towards the arrears, as well as paying the rent as it falls due.
If the tenant fails to maintain those payments, an application can be made to the court for a warrant seeking possession of the property.
Which route is better for me?
From what is said above, you need to decide what is more important to you. Is your priority obtaining possession of the premises quickly, with your secondary concern being recovery of the outstanding rent? If so, section 21 would be the more appropriate route to follow.
If your greater concern is to recover the rent arrears (or at least to obtain judgment against the tenant in respect of the arrears) while possession of the property is a secondary consideration, perhaps the section 8 route would be the better.
When considering whether to try to obtain possession of your property a factor to bear in mind, is the possibility that the property may stand vacant for some time while you try to find a new tenant. If the tenant is not paying any rent whatsoever, it would probably be in your interests to obtain possession as soon as possible, so that you can then start the process of re-letting, while carrying out any necessary remedial/maintenance work.
We at Burnetts are always happy to discuss the section 8 and section 21 options and to advise which will be more suitable in your particular circumstances. With Burnetts’ Assured Shorthold Tenant Eviction Scheme, the whole process is dealt with by experienced legal professionals.
For further information on Burnetts' Assured Shorthold Tenant Eviction Scheme contact Rob Winder on 01768 800855 or by email to firstname.lastname@example.org.