Section 8 or 21?
Many landlords ponder the questions” do I need to serve both section 8 & 21 notice on my tenants?
To answer this question, I have created subheadings with a summary which I hope will give you a better understanding and in turn answer your question.
What is a section 21 notice and when to use it?
A section 21 notice is a no* fault notice to terminate a tenancy when the fixed term ends. You cannot expect possession before the fixed term of the tenancy.
If you served a section 21 notice and the date on the notice stipulates you require possession of your property before the fixed period of the tenancy then that notice will be invalid.
The reason being the tenancy is an assured shorthold tenancy for a fixed period. You cannot terminate the tenancy before the fixed term under section 21. However, you can terminate a tenancy under a section 8 notice if the tenant has breached the terms of the tenancy anytime even within the fixed term.
*If the tenancy commenced on or after 1st of October 2015 or the 1st tenancy commenced before 1st of October 2015 and you then renewed the tenancy and the latest tenancy commenced after 1st of October 2015 then your tenancy is subject to the Deregulation Act 2015. The deregulation Act 2015 has introduced; –
(1) A Prescribed section 21 notice. You cannot use a non-prescribed notice. You must use this new prescribed section 21 notice if the tenancy was renewed or the tenancy commenced after the 1st of October 2015. (New notice is available free from the download page)
(2) If the tenant has reported disrepair and they are still outstanding then you need to be aware of the retaliatory eviction element of the deregulation Act 2015.
This may not apply if you are selling your property (seek free legal advice from Landlord Advice UK if you are a BLA member).
(3) Under the deregulation Act 2015 (if applicable to your tenancy) you should also give the tenants (1) a how-to rent booklet (2) a Gas safety certificate (3) a deposit certificate and the deposit prescribed information.
(4) Under the deregulation Act 2015 (if applicable to your tenancy) you have time periods when you can serve a section 21 notice. If you do not comply with these time periods then your section 21 notice may be deemed invalid.
What is a section 8 notice and when to use it?
A section 8 notice is usually used when you have a breach of tenancy. The usual grounds used under section 8 notice are for rent arrears grounds 8,10 &11.
A section 8 notice has 17 grounds. If the tenants have rent arrears, damaged the property, sublet, caused nuisance, or used the property for criminal purposes you should consider if advised by your lawyers to use the section 8 notice route.
One of the benefits of using a section 8 notice as opposed to a section 21 notice is that a section 8 notice for rent arrears has a waiting period of 14 days. Upon expiry of the 14 days, you can go to court. A section 21 notice is 2 months (or more if you served it early).
So, if you have rent arrears you should consider serving a section 8 notice as this is quicker. An even quicker route if you have the grounds is Ground 14. Ground 14 is the only ground under the Housing Act (HA) that has no waiting period.
This means you can serve the notice on the tenants and issue a possession claim through the court the next day if you wanted.
You can download the list of all the grounds from the member’s download page. If you are not a member join now, membership is free.
WARNING; – It is not always advisable to serve and issue court proceedings for possession under section 8 especially if you have disrepairs.
If you are claiming breach of tenancy under the section 8 notice and you are claiming damages say for rent arrears or damage to the property then a tenant can make a counterclaim against you.
Counterclaim – what a counterclaim means for a landlord is not fully understood by many landlords. A landlord who has a counterclaim for disrepair is not a good position for a landlord to be in for the following reasons; –
When tenant’s solicitors file a counterclaim, the tenants are probably on legal aid. This means they do not have to pay for the counterclaim/defence. On the other hand, you will have to pay your lawyers to defend you.
Disrepairs are expensive to litigate and even if you win and fend off a counterclaim you are highly unlikely to physically get your legal fees paid by the tenant.
To compound the problem sadly some lawyers even some who claim to specialise in housing law do not prudently deal with a counterclaim.
To assist lawyers; –
Disrepair should never ideally go to full trial, it is not in the interest of your client. Immediately consider serving a part 36 offer. Advise your client (if you win) that any money judgement received still means the tenants are very highly unlikely to pay the rent arrears/damages or the legal fees.
The fight does not start in the courtroom it starts with a good strategy, your aim should be to settle the claim early. The defendant’s Solicitors will have no incentive to give up even if they have a weak case as they are drawing funds from the Legal Aid.
Part 36 offer will remove the defendant’s solicitor’s incentive to continue if the offer is reasonable, or their case is weak.
Explain to your client making a part 36 is not an admission but simply a tool to settle the claim. County Judges are very Learned and wise they know the merit of settling the claim and they know too well even if the client wins the client is very unlikely to see any money from the tenants.
So, do not look at a part 36 offer as a defeat or admission (provided it is correctly drafted).
One of the biggest mistakes some lawyers dealing with disrepair claims is when directions are being agreed upon and landlord’s solicitors roll over and accept the standard directions that are given, they are standard, they are the ones they have been used.
When it comes to directions for a surveyor it should be a joint surveyor. The instructions to the surveyor should be “limited” to the alleged disrepairs the defendant has already submitted.
Too often the directions are for the surveyor to go and check the property for disrepair and see if the landlord is in breach and are not limited to the disrepair claimed.
This often causes a problem as the surveyor may pick up further problems or damages (damages caused by the tenant before the survey) and no surprise this will muddy the waters unnecessarily.
As a lawyer, you may not have practical experience in plumbing and general building work. When you see the defendants, alleged disrepairs consult with a friend tradesman and see what comments they may make on the alleged disrepairs.
We dealt with a case where the defendant’s solicitors hated our client (possibly due to what their client alleged in way of disrepair and alleged assault). They confidently sought £70,000 and legal costs and firmly believed they would get it.
4 weeks later not only were we able to provide/demonstrate that there was no disrepair, but we could also demonstrate provide evidence that the damage caused was by the defendants themselves.
The defendant’s solicitors upon us disclosing our evidence early stopped representing their client and the matter went to court undefended.
The full story would be a brilliant demonstration to show the importance of having some practical experience in plumbing and general building work which in turn is a great aid in dealing with disrepair/counterclaim. This is a story for another day.
Written by; Landlord Advice UK
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