TENANT EVICTION ADVICE FOR 2023

In most cases the eviction scenario involves a landlord giving full use of a whole property to a tenant on an Assured Shorthold Tenancy (AST). The AST is the default tenancy type for a tenancy created after February 1997. To gain possession of a property on an AST you must first give Notice, this is done by serving a Section 8 Notice, a Section 21 Notice or both.  

To be able to use a Section 8 Notice or Section 21 Notice at court you must be able to prove that it was properly served. Tenants can argue they never received it or they received it late – which could see a possession claim dismissed (thrown out of court), which means starting again. We follow Civil Procedure Part 6 Rules when servings our Notices. A tenant cannot argue the Notice wasn’t received – legally it was served when we say it was.

Section 21 is the most common method by which landlords regain possession of their property let on an AST. A Section 21 Notice is used to end an AST.

The landlord does not need to give a reason for possession via Section 21. The process is often called “no fault possession”.

For a Section 21 Notice to be valid the landlord must be able to provide evidence that they have provided the tenant copies of following:

• the government booklet, the ‘How to Rent’ guide;
• a copy of a valid EPC for the property;
• a copy of a valid Gas Safety Certificate for the property, if there is gas;
• a copy of the deposit prescribed information, if there is a deposit.

The deposit, if any, must have been protected within 30 days of being paid.

No banned tenant fees must have been charged.

If applicable – you must check this – you may need a valid Property/Landlord Licence, as required by any legislation and/or local authority/council - for example: a HMO licence or any other property/landlord licence required by any legislation and/or any local authority property/landlord licensing scheme and/or private rented/landlord licence scheme.

Once the landlord is able to prove compliance with the above – a Section 21 Notice can be served.

If after being served a valid Notice the tenant fails to provide the landlord vacant possession (leave the property) by the Notice Date stated within the Notice the landlord can apply to court for a possession order.

The landlord in most cases has 6 MONTHS from when the Notice is issued to apply to court for a possession order. In some cases where the tenancy period is quarterly or longer it is valid for 4 months from the possession date specified in the notice.

The Section 21 court process is also known as Accelerated Possession.

The processes involved in Accelerated Possession often mean the landlord does not have to go to court to obtain a possession order – IF – everything has been done correctly a possession order is usually granted with no court hearing.

However, if there are issues or the tenant defends the case, a court hearing may be set.

Tenants cannot counterclaim via Section 21/Accelerated Possession.

You cannot obtain a money judgement via Section 21/Accelerated Possession – the landlord cannot use Section 21 to recover any rent arrears owed.

A Section 21 Notice cannot be served in the following circumstances:

Where any of the above legislation has not been adhered to.
Within the first 4 months of the tenancy.
Where an Improvement Notice (for repairs, Section 11 and/or Section 12 Notice) has been served on the property by the local authority within the last 6 months.

For help with any of above please call 0800 118 4 118

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).

Counterclaims

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 lengthy legal wrangles.

A possible outcome of a counterclaim is the landlord leaving court owing the tenant 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.

Deposit

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.

Disrepair

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.

Delays

Upon application the County Court will set a first Section 8 court hearing, the court usually set the hearing for between 10 and 20 minutes. If there is any lengthy dispute at the first hearing between the landlord and tenant, the matter is usually adjourned as there is not enough time for it to be dealt with.
It is then re-listed to be heard on another day, 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 and costs are added due to the further hearing being added.

Money Judgement

The landlord can obtain a money judgement for rent arrears owed via Section 8.

For help with any of above please call 0800 118 4 118

The Section 8 route is very different to the Section 21 route. In some cases we recommend the Section 21 route over section 8, due to the inherent risks with Section 8 in regards to counterclaims, etc.
Section 8 is however a very good tool in certain circumstances and on occasion is the only eviction option available.
In most cases gaining possession via Section 21 is simpler and less risky.
Section 8 is best used within the first 4 months when Section 21 cannot be used, or where there are high rent arrears and there are no issues with the deposit or repairs.