Short Guide to Residential Possession: Section 8 of the Housing Act 1988

The availability of section 8 of the Housing Act 1988 allows Landlords to seek possession of a property let under an Assured Shorthold Tenancy BEFORE the expiry of its fixed term, unlike the other main form of Notice, under Section 21.

Section 8 proceedings are more commonly used in cases where the Tenant has defaulted in some way and the Landlord wishes to end the tenancy and to repossess his property as a consequence of such default.

There are Grounds that can be put forward by the Landlord and this normally involves seeking possession where a tenant has defaulted on rent payments or other provisions within the tenancy agreement.

Requirements to Use Section 8 Notices

• • Section 8 Notices must be drafted in the correct format;
• • Section 8 Notices must specify the grounds of possession being relied upon to seek possession; and
• • The Landlord must serve a Section 8 Notice on the Tenant(s) and begin Section 8 Proceedings within the correct deadlines set out for each of the grounds.

Grounds for Possession

Section 2 of the Housing Act 1988 sets out the 17 grounds that a Landlord may use to obtain an Order for Possession against the Tenant.

If the facts of Grounds 1-8 are proven at Court then an Order for Possession must be made by the Judge. These are known as mandatory grounds for possession.

However, for Grounds 1-5, the Landlord must have informed the Tenant before the tenancy started that they would make use of any of these Grounds during the tenancy. These are referred to as prior notice grounds.

Mandatory and Prior Notice Grounds

Ground 1: The Landlord has lived or intends to live in the property as their principal residence.

Ground 2: The Mortgagee is claiming possession where mortgage was registered before Tenancy started.

Ground 3: The tenancy is a holiday let and has been let as holiday accommodation

Ground 4: The tenancy is a student let and has been let by an educational establishment to students.

Ground 5: The property is held for use by a minister of religion.

Mandatory Grounds (No Prior Notice)

Ground 6: The Landlord intends to redevelop the property.

Ground 7: The former tenant has died (except where there is a person with a right to succeed).

Ground 8: The Tenant owed at least 2 months rent (for a monthly tenancy), 8 weeks rent (for a weekly tenancy), 3 months rent (for a quarterly tenancy) or 6 months rent (for a yearly tenancy) at the date of service of the Section 8 Notice and still owes at least this amount of rent on the date of the court hearing.

Grounds 9 – 17, if proven at Court, will only allow for the grant of an Order for Possession where the Court finds that it is reasonable to do so. These are known as discretionary grounds.

Discretionary Grounds

Ground 9: Suitable alternative accommodation is available.

Ground 10: The Tenant was in arrears with their rent at the time of sending Section 8 Notice and at the commencement of court proceedings.

Ground 11: The Tenant is consistently in arrears with their rent payments, even if they are not in arrears at the commencement of court proceedings.

Ground 12: The Tenant has breached one or more of terms of the tenancy agreement.

Ground 13: The Tenant, their sub-tenant or any other person living in the property has caused the condition of the property or any of the common parts to deteriorate.

Ground 14: The Tenant or someone who is living in or visiting the property has caused or is likely to cause a noise or nuisance to neighbours, alternatively they have used the property or allowed it to be used for immoral or illegal purposes, or they have committed an arrestable offence in or around the property.

Ground 15: The Tenant, his sub-tenant or any other person living in the property has caused the condition of the furniture to deteriorate.

Ground 16: The Tenant was granted the property as a result of his employment and is now no longer employed by the Landlord.

Ground 17: The Landlord was induced to grant the tenancy by a false statement made knowingly or recklessly by either the Tenant or by someone on the Tenant's behalf.

By far the most used grounds for Landlords relate to Tenants who have failed to pay rent. Normally Grounds 8, 10 and 11 are used in this instance and as Ground 8 is mandatory, if the rent arrears stand at 2 months lawfully due both at the date of service of the s8 Notice and at the date of the Court hearing then the Court must grant an Order for Possession.

Steps to an Order for Possession

• 1. Draw up the section 8 Notice in the prescribed format and ensure that all of the applicable Grounds are correctly listed and the requirements met;
• 2. The expiry date of the Notice must be clearly shown and defined so that action can be taken once it has expired;
• 3. Serve the Notice on the Tenant, or each Tenant if there is more than one. This should be sent by First Class Post and Recorded Delivery if possible. When sending by First Class post a receipt should be obtained. Some people will also do each method from a different post office to ensure that the Notice(s) reach the Tenant(s) by service and can be proven to have done so.
• 4. The Landlord must now wait until the Notice has expired; and
• 5. If the Tenant does not leave the property voluntarily by the time that the Notice has expired, or taken action to rectify the default (if possible) then a Claim for a Possession Order will need to be made at Court.

LMD Law can provide assistance to Landlords throughout the process of seeking a Possession Order as well as to Tenants who face proceedings against them.

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