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Section 8 vs Section 21: What’s The Difference

Are you a landlord seeking possession of your rented property? A landlord often has to choose between serving a section 21 notice and section 8 notice for evicting their tenants but both can be served in parallel if a tenant has breached the terms of the agreement. Both notices have their advantages and disadvantages. So which one should you opt for?

The Housing Act 1988 outlines two ways to claim possession of your home. The details of these are set out Section 21 and Section 8 of the Act. If your tenants have not broken any clauses of the tenancy agreement, then you can only serve a section 21 notice. However, if the tenant is persistently late with paying rent, owes you more than two months’ rent, or has breached other terms of the agreement, then you should serve a section 8 notice as a minimum.  You will find that many landlords opt to serve both notices when a tenant has breached the terms of the agreement.

Man asking a person to sign a form

Why Issue a Section 21 Notice?

The possession procedure, under section 21 can be more streamlined because the grounds for possession are not as easy to defend, At best, if a landlord has followed the procedure to the letter, then a defence usually revolves around disputing the validity of the information filed on behalf of the landlord. A court will grant an order for possession if the landlord can prove, among other things, that they’ve complied with the requirements for serving the notice and the De-regulation Act i.e. serving the tenant with a How to Rent guide, Energy Performance Certificate and Gas Safety Certificate.  If an order for possession is entered with or without the need for a hearing, the tenant ordered to vacate, then it will be highly unlikely that any future Application hoping to set aide the Judgment will succeed.

Landlords should seek legal advice as to whether a section 21 notice should be served on their behalf.  Serving a section 21 notice can yield a significant benefit, even in circumstances where there are rent arrears!

Also, if there are rent arrears and the tenant does not have any employment, assets, or guarantor, your legal counsel may advise you to issue Section 21 notice as securing a money judgment may prove to be a futile exercise.  Therefore, any procedure which secures the eviction of the tenant should not be discounted.

Why Serve a Section 8 Notice?

Serving a section 8 is an obvious choice when a tenant has breached the terms of the tenancy agreement because the time line to enforcement is far shorter than what is offered under Section 21 of the Housing Act.  If there are excessive rent arrears then not only is the time frame to enforcement quite short, but if your tenant has employment, assets, and a guarantor then a claim for possession in breach of section 8, and which seeks to secure a money judgment in parallel to the order for possession, may help you physically recover what is owed to you. A firm with a dedicated tenant eviction service will advise you of the best course of action once the circumstances of the tenancy have been properly considered and the tenancy relevant paperwork reviewed.

A court is compelled to grant you an order for possession which can be enforced through the use of a bailiff, in the event the tenant still refuses to leave the property, if the grounds for possession made out are upheld and any are a mandatory ground for possession.

It is essential that the various pieces of legislation which relate to residential tenancies across the UK are adhered to in full as they may influence your chances of securing a favourable outcome.  As an example, a failure to fully comply with the management of a tenant’s deposit can influence a claim for possession brought in breach of Section 8 and Section 21.  In Wales, for example, a landlord or their managing agent must be registered with the Rent Smart scheme.  

A tenant signing a form

Disadvantages: Section 8 Notice vs Section 21 Notice

As a landlord, you will be unable to successfully enforce a section 21 notice if you have failed to comply with the deposit legislation.  Knowing if you are compliant is essential before serving a section 21 notice as you may need to take remedial action before the notice is served.   

A failure to serve a tenant with an EPC or How to Rent Guide can jeopardise the validity of a claim brought in breach of section 21 where the tenancy began or was renewed after 1st October 2015.  As can failing to have valid gas safety certificates for each period of the tenancy.  There may even be a problem if you just can’t demonstrate the gas safety certificates were served on the tenant.

A good number of the grounds for possession under section 8 may be sufficient to bring a claim for possession but which ultimately fail to secure the desired outcome.  The reason being that many are discretionary grounds for possession, which means that a Judge can exercise their discretion to decline your request for possession even if the ground for possession has been properly evidenced.  It is therefore essential to know which grounds have a greater chance for success as it may influence whether you pursue a claim in breach of section 8 as opposed to section 21.

Licensing is now a big issue given that most local authorities will have designated selective licencing areas or where certain properties and/or the make-up of the household may constitute House of Multiple Occupation (HMO’s) thereby requiring a formal licensing.  Failure to secure the right licence may prevent enforcement under section 21 for example, whereas a counterclaim through a Rent Repayment Order (RRO) for failing to meet licensing, may undermine a claim brought in breach of section 8.

It is helpful to bear in mind that a good number of the courts across England and Wales, and especially in London, are significantly behind on their workload.  Understanding which procedures are moving through the court quicker, whilst not the obvious choice, may save you money and time.  As an example, cases brought in breach of section 8 which require court hearings are currently more likely to take longer to conclude than undefended section 21 claims that have been properly advanced.

Also, under Section 8, you can get a money order from the court to recover money from the tenant, but it often a futile exercise if the profile of the tenant suggests they do not have the income or assets to satisfy the Judgment.  It could therefore add insult to injury to throw good money after bad if the chances for recovery of a money judgment are very low or you proceed down a route which takes significantly longer when getting possession to allow for the property to be re-let could have been more economically sensible.

Always consult a professional specialist in ‘Landlord and Tenant’ and/or Residential Eviction Services who understand how the county courts are currently operating if you are unsure about serving a tenant eviction notice. It could save you time and money!!!

At Landlord Assist, we provide tenant eviction services and, through our network of panel solicitors, landlord legal services throughout London, Kent and other counties across the UK. Get in touch with Landlord Assist or visit our website for more information on our services for Landlords should you need help to send Section 8 notice or a section 21 notice.  We offer a free advice service which can offer practical solutions before the need for more costly formal activity.

Consult our Landlord and Tenant team to find out how we can help you.