A Section 8 Notice, commonly known as a ‘Notice Seeking Possession’, is used to end a tenancy due to a breach of the terms of the AST, such as not paying rent.
To obtain possession via Section 8 you must satisfy at least one of 17 Grounds for Possession within the Notice and at County Court. A Section 8 Notice can be served whenever a Ground for Possession is met. You must always give a reason (Ground for Possession) via Section 8.
A Section 8 Notice can be used where a Section 21 Notice cannot, such as during the fixed term of an AST. There will be always be a court hearing via Section 8.
More than 8 weeks/2 months owed
Landlords most commonly want to use Section 8 when there are rent arrears.
If rent is paid weekly, arrears must be 8 weeks or more; if rent is paid monthly, arrears must be two months or more – BOTH when the Notice was served and at court at the hearing.
If the tenant reduces the rent arrears balance owed below the 8 weeks/2 months threshold before the hearing – it may nullify the rent arrears Grounds for Possession contained within the Notice, which may mean starting again or severely delaying the process.
Non-Rent Grounds – Evidence and Convincing the Court
When relying on any other Ground for Possession (fraud, crime, disorder, damage), you must be able to prove by evidence that the criteria for obtaining a possession order have been met.
You must provide enough evidence – by independent witness, police, local authority, agent and/or other(s) reports/statements, pictures, video, etc. – to deal with any tenant defence and convince the Court(s).
Section 8 proceedings allow the tenant to make a counterclaim and defend the case.
The landlord is left open to counterclaims and spurious defences by the tenant, which could lead to months/years of legal wrangles.
A possible outcome of a counterclaim is the landlord leaving court owing the tenant a substantial amount of money, with the tenant still being allowed to remain in the property.
The tenant may not be bound by pre-court protocols in counterclaim situations and may meet criteria for public funding because they are at threat of losing their home.
The potential penalty at a Section 8 court hearing for not protecting the deposit within 30 days of it being paid is – up to three times the amount of the deposit.
If a penalty is awarded it will be credited to the tenant, usually to the tenant rent account. This penalty could bring the tenant rent account out of arrears, nullifying the rent arrears Ground for Possession within the Notice, which could mean starting again or severely delaying the process.
The tenant may not be bound by pre-court protocols in deposit counterclaim situations and may meet criteria for public funding.
At a Section 8 court hearing the tenant may claim the landlord has failed to carry out repairs. A tenant can claim disrepair and seek an injunction for repair works and compensation for the inconvenience caused by the disrepair.
The tenant may not be bound by pre-court protocols in disrepair counterclaim situations and may meet criteria for public funding.
The first Section 8 court hearing is only ever set for between 5 and 15 minutes. If there is any dispute at the first hearing the matter is adjourned as there is not enough time for it to be dealt with.
It is then re-listed, usually the first available date after 4 weeks, with more time allocated for the matter to be properly heard. Each time the case is adjourned the tenant remains in the property.
The landlord can obtain a money judgement for rent arrears owed via Section 8.