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Section 8 and Section 21 - What's the difference?

View profile for Helen Porter
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When attempting to obtain possession of your property as a landlord (when it is let out on an Assured Shorthold Tenancy Agreement), there are two routes that can be followed. Helen Porter, Partner in our Litigation and Dispute Resolution team, explains how Section 8 and Section 21 of the Housing Act 1988, as subsequently amended, can assist.

Section 8

Section 8 can be used during the term of a tenancy, but one (or more) of the grounds specified in Schedule 2 to the Housing Act 1988 must be satisfied. Some of the grounds are mandatory, and therefore if they are successfully made out in subsequent proceedings, a possession order must be granted by the court.  These include, for example, rent arrears (amount dependant on the length of the tenancy term), landlord requiring the property to live in, intention to demolish or reconstruct the property etc.

However, some grounds are only discretionary, and in those cases it will be for the judge to decide whether he/she thinks that they are sufficiently serious enough to grant the order in all the circumstances. These include, for example, frequent late payment of rent, the tenant has allowed the property to deteriorate etc.

A section 8 Notice will need to be served prior to issuing proceedings, and notice periods range from 2 weeks to 2 months, depending on the ground relied upon. If the tenant does not comply with the Notice, then proceedings will need to be issued.

There will always be a hearing when using the Section 8 procedure; legal costs are therefore likely to be higher than the Section 21 route.  On the other hand, the landlord should also get a money judgment for any rent arrears owed (although enforcement should always be considered before proceeding to obtain a money judgment).

Section 21

This is the most common route used to obtain possession of residential property, as you are almost guaranteed to obtain a possession order, assuming that the correct procedure has been followed and the correct Notice served.

A landlord cannot obtain possession during the fixed term of the tenancy, and since 1 October 2015 the notice cannot be issued prior to 4 months into the tenancy.  A minimum of 2 months’ notice must be given, but a landlord is likely to get a possession order quicker than under Section 8 if there is no requirement for a hearing.  After the expiry of the Notice, if the tenant has not vacated the property, the landlord will be entitled to issue possession proceedings.

Using the Section 21 procedure, there is normally no need for a hearing, as the matter will be dealt with by the Court on paper.  Only in very limited circumstances will there be a hearing, for example, if the tenant is making a hardship application (explained below) and the court considers that this cannot be dealt with on paper.

In certain circumstances, the tenant may ask the Court to postpone the order for possession.  Normally, a tenant will be required to vacate within 14 days after the possession order is granted. However, if the tenant can show exceptional hardship, a court may grant an extension of time to vacate by up to 42 days.  Examples of exceptional hardship might be that they have a disability, are just about to undergo an operation or have young children.

In summary, using the Section 21 procedure is usually the quickest and cheapest route, as a hearing is not usually necessary.  However, the Section 21 procedure cannot be used within the term of the tenancy and no money judgment can be obtained (a landlord can pursue a money claim separately if they were minded to).

For further information in relation to serving notices on your tenant, the change in legislation since 1 October 2015 or tenancies generally, please contact Helen Porter on 023 8071 7425 or email helenporter@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.