Section 21 & 8 notices

What are Section 21 Notices and Section 8 Notices?... What’s the difference and when do you serve them?

Look no further than the guide below:-

What is a Section 21 Notice?

The eviction notice’s official title in the courts is a ‘Notice Requiring Possession (under section 21 of the Housing Act 1988)’.

It’s used in England & Wales by landlords to evict tenants and to gain possession of a property that is let under an assured shorthold tenancy (AST). The notice can only be used to gain possession where the tenancy is for a fixed term and the property can only be vacated when the tenancy is at an end.

If the landlord wants a tenant to vacate their rental property during the fixed term, then the tenant can only be evicted if a breach of contract has been proved. The landlord cannot use a Section 21 notice and must use a Section 8 Notice instead. Section 8 Notices can only be used when a tenant is in rent arrears.

When can I serve my Section 21?

A Section 21 cannot be served in the first 4 months of the original tenancy but it may be served at the outset of a replacement tenancy. In practice however, the new six month lifespan means landlords should get into the habit of serving the Section 21 form as and when it is needed rather than habitually.

If, however, the tenant has actually moved out on or before the last day of the fixed term itself (as opposed to the expiry date of the Section 21 notice) then the tenancy ends automatically at the end of the fixed term so no further rent would be payable beyond this date.

How will I serve a Section 21 notice to expire on the last day of a 6 month tenancy if I cannot serve in the first 4 months?

You cannot. Notice periods will now expire a few days after the end of a 6 month fixed term. If a tenant moves out on the final day of the notice period the Deregulation Act makes it clear that landlords should repay the remainder of the rent for the month to the tenant. Therefore, the tenant is only liable for rent for the few days he/she remains in occupation beyond the last day of the fixed term of the tenancy.

For Further details please feel free to contact our office and speak to one of our experienced Lettings Consultants.

What is a Section 8 Notice?

The eviction notice’s official title in the courts is a ‘Notice Seeking Possession (under section 8 of the Housing Act 1988)’.

A Section 8 Notice is used in England & Wales by landlords to gain possession of a property that is let under an assured short-hold tenancy (AST) and are in rent arrears of at least two months or more (or eight weeks for a weekly tenancy).

Under the Housing Act, a landlord is entitled to an order for possession as of right if the tenant is in rent arrears of at least two months at the date of serving the notice and at the date of any court hearing.

When can a landlord serve a Section 8 Notice?

The notice cannot be served until the tenant’s rent arrears have reached two months. For example, if the monthly rent is £500, then the rent arrears must be at least £1,000.

The advantage of a Section 8 Notice is that a landlord only has to give the tenant 14 days’ notice and it can be used at any point during a fixed or statutory periodic tenancy (i.e. after the fixed term has come to an end).

It’s wise, however, for landlords to allow a bit longer than two weeks’ notice, because if the notice takes longer than anticipated to serve, or if it’s served by leaving it at the property rather than by handing it to the tenant, then the notice period (if just 14 days have been allowed) may be insufficient and make the notice invalid.

How is two months’ rent arrears worked out?

If the rent on the property is paid in advance (as it usually is) then the tenant is in rent arrears by the full period as soon as the payment is missed. For example, if the rent is paid monthly on the first day of the month, then on the second day of the month the tenant will be in rent arrears by one month, if they haven’t made payment. Therefore, for a tenant paying monthly, this notice can be issued after a month and one day of non-payment.

A Section 8 Notice can also be used if the tenant has been consistently making short payments, as long as the total rent arrears add up to two months’ worth. Therefore, if the tenant has paid half the rent for four months, they will be in the equivalent of two months’ rent arrears and the landlord can serve the tenant with a notice.

What if there is a huge amount of rent arrears?

If the rent arrears history of the tenant is complex, it may be helpful for landlords at this stage to include a schedule of rent arrears to the tenant to show them how the rent arrears figure they have put on the form is calculated.

If the tenant’s rent arrears history is simple (i.e. if it’s just two straight months), then this isn’t necessary.

Does the tenant have to be warned about rent arrears before a Section 8 Notice served?

Before a landlord takes action to recover possession of a property because of rent arrears, the landlord should take every measure to remind a tenant of the fact that they are in rent arrears, as soon as they are in arrears, by sending them reminder letters at staggered intervals, such as 7 days, 14 days and 21 days. Sample letters are provided by Lawpack.

Who is the Section 8 Notice addressed to?

All the tenants must be named in the notice and the names of the parties and the address should match those in the tenancy agreement. Even if some tenants have moved out, they should still be named on the notice if they were named on the most recent tenancy agreement.

As a precautionary measure, each individual tenant must be served with a notice. If the tenant is renting a room in a shared house, the landlord must specify the room (e.g. ‘room 1’) rented by the tenant, as well as the property address.

How do I serve the Section 8 Notice?

The notice should be served on the tenant by the means specified in the tenancy agreement. If Lawpack’s assured short-hold tenancy agreement is used, the Section 8 Notice must be given to the tenant directly, or put through the door of the property, or mailed by first-class post.

The tenants must sign and return a copy to the landlord. Landlords should always keep a copy of the notice served, along with a record of the date and method of service, the name of the person who served it and any witnesses.

A copy of the notice should also be sent to any guarantors, even though they are not named as defendants.

How long until court proceedings take place?

Once the Section 8 Notice has been served, the landlord will need to wait until the expiry date on the notice has passed be-fore they can issue proceedings in court. This date is very important. It will be calculated by adding 14 days to the date of service of the notice. The date of service will not necessarily be the day the landlord completes the notice as the landlord needs to allow time for it to be served on the tenant.

If Lawpack’s assured shorthold tenancy agreement is used, then the date of service will be the day after the landlord posts the notice or puts it through the door of the property. Therefore, the expiry date of the notice will be 15 days after it’s posted or put through the door. If you have any further questions relating to Section 8 Notices please contact us and speak to one of our experienced letting consultants.

Information Sources taken from Government issued website and the RLA

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