February 9, 2022

What is the difference between a Section 21 and Section 8 Notice?

Specialist solicitor for landlords, David Sodimu of Holmes & Hills Solicitors, discusses the differences and misconceptions of section 21 and section 8 notices.

On 27 March 2022, it will mark the second-year anniversary of a change in legislation relating to possession proceedings that have, to date, left most landlords struggling to recover possession from tenants.

A residential landlord has always had the statutory right to recover possession under section 21 and section 8 of the Housing Act 1988 (“the Act”). However, there were significant amendments to the Act in 2020 following the passing of the Coronavirus Act 2020. This has meant that it is has become imperative for Landlords to be a lot more strategic about the tactics used to recover possession of their properties and ensure that they are in tune with current Court practices.  

Notice under section 21 of the Act

Under section 21 of the Act, you can give your tenant a minimum of 2 months’ notice to vacate a property, provided that the notice period does not expire before the fixed term expires. You may give notice at any point during the tenancy, provided the lease has been in place for more than 4 months, though the notice must not ask the tenant to move out of the property by a date which is earlier than the expiry of the fixed term.

There are two misconceptions with section 21 notices:

  • If notice is not given, the tenant will no longer have a tenancy agreement following the expiry of the fixed term anyway.

This is incorrect. Once a fixed term expires, a periodic tenancy agreement is automatically created if the tenant remains in occupation and will continue until either the landlord or tenant serves the appropriate notice, or by way of an agreed surrender of the tenancy.

  • If there is a good relationship between the landlord and the tenant, the landlord does not have to serve a section 21 notice, they can just agree verbally or in correspondence that the tenant will move out at the expiry of the fixed term.

This is invariably incorrect. It is often the case that the tenant will agree to move out at the expiry of the fixed term but, usually due to unforeseen circumstances, is unable or unwilling to vacate when that date comes. The landlord will be unable to rely on a verbal or written agreement to obtain possession of a property if a tenant changes their mind. If a section 21 notice is served in the first instance, irrespective of any agreement in place,   the landlord will have reserved their position if the tenant does not move out at the expiry of the fixed term/notice.

It is also important for landlords to ensure that they have served all the requisite documents on the tenant at the start of the lease and, in any event, before the service of a section 21 notice. As a landlord, you should get into the practice of serving a section 21 when seeking to recover possession even when you do not foresee opposition from a tenant.

Notice under section 8 of the Act

Under section 8 of the Act, a landlord can ask their tenant to vacate the property before the contractual term has expired, provided one of the grounds in Schedule 2 of the Act are met. The notice period a landlord is required to give their tenant under section 8 will depend on the ground for possession on which they are intending to rely. Those grounds can be found here.

Usually, landlords will serve a section 8 when their tenant has stopped paying rent; not kept the property in good repair and condition; or breached any other obligations under the tenancy agreement. It is for this reason that the notice periods are generally a lot shorter and sometimes even no notice is required in the most serious cases.

However, landlords should bear in mind that, although the notice periods are shorter under section 8 notices, the Court proceedings are usually more time-consuming and costly, especially if the application for possession is defended by the tenant.

Under the section 21 procedure, landlords can rely on the ‘accelerated possession procedure’ and, more often than not, possession is likely to be granted quickly.

When it comes to possession proceedings, landlords need to make the very early choice of what their priority is - i.e. is the quick recovery of possession of the property more important? Or is the recovery of rent arrears and recoverable costs under the tenancy of more importance?

This choice will invariably be the determining factor of the route that a landlord should take to obtaining possession of a property and could save a lot of hassle for many landlords in the long term as opposed to “throwing good money after bad”.

With landlords decreasing in appetite to rent to tenants without promising references, and the impact of the Coronavirus, more and more tenants are being pushed to seek assistance from the local authority for housing, and this has, in turn, caused many tenants to oppose possession proceedings by any means possible. It is, therefore, more important for landlords to be decisive and carefully consider methods of recovering possession at an early stage.

If you need advice in relation to evicting a tenant, or you require assistance with evicting your tenant, please do not hesitate to contact Aimee Phillips or David Sodimu, Landlord and Tenant Law specialists, at Holmes & Hills.

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Call 01206 593933 and speak with David Sodimu or Aimee Phillips, specialist solicitors for landlords.
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