Section 8: A complete guide to fault-based possession

What is a Section 8 notice?

A Section 8 notice, also known as a Section 8 Possession Notice, is a document issued to a tenant when a landlord wishes to regain possession of their property.

So-named because it is outlined in Section 8 of the Housing Act 1988, the notice can be issued to a tenant who has breached the terms of the tenancy agreement, or when certain circumstances surrounding the property have changed, rendering the original terms of the tenancy agreement void.

Not to be confused with the other possession notice – Section 21 – serving a Section 8 notice does not guarantee that possession will be granted. 

When can a Section 8 notice be served?

In order to issue a Section 8 notice, a landlord has to specify the reason that the eviction must take place.

The grounds for possession are outlined under Schedule 2 of the Housing Act 1988, fall into 2 main categories, mandatory and discretionary. 

Mandatory Grounds: If a notice is served on the basis of one of these grounds, a court must serve possession to the landlord.

  • Ground 1: The landlord requires possession of the property in order to use it as their main residence. This is only relevant if the landlord can prove that the property was their main residence prior to the tenancy starting.
  • Ground 2: If the property has a mortgage, the mortgagee is exercising a power of sale
  • Ground 3: The tenancy has a fixed term of no more than eight months, and the property previously used as a holiday let and is to be returned to the status of holiday let.
  • Ground 4: The tenancy has a fixed term of no more than twelve months, and is let as student accommodation outside of term time. Written notice that this may happen must be served before the tenancy begins.
  • Ground 5: The property is owned by a religious body and they require possession for Minister of Religion.
  • Ground 6: The property requires redevelopment/significant building works, requiring the demolish or reconstruction of the whole or a substantial part of the property. The tenant must either have denied on a variation of the tenancy to allow such works, or it be impractical to remain in the property whilst works are carried out.
  • Ground 7: If the tenant ‘inherited’ the tenancy following the death of the original tenant, and is not named on the original tenancy agreement. The notice must be served within twelve months of the death of the named tenant
  • Ground 7A: The tenant has been convicted of a serious offence, or breached an Anti-Social-Behaviour-Order (ASBO), in the property, against a person residing in the locality of the property, or against the landlord.
  • Ground 7B: If the landlord receives correspondence from the Secretary of State that the tenant is disqualified as a result of their immigration status from occupying the property under the tenancy.
  • Ground 8: The tenant has failed to pay more than eight weeks rent in the case of weekly payments, two months in the case of monthly payments or one quarter in the case of quarterly payments.

Discretionary grounds: If a notice is served on the basis of one of these grounds, the court has the right to choose whether or not to issue possession.

  • Ground 9: Suitable accommodation of the same type and quality has been offered to the tenant and refused.
  • Ground 10: The tenant has accrued some rent arrears but by no more than eight weeks in the case of weekly payments, two months in the case of monthly payments and one quarter in the case of quarterly payments.
  • Ground 11: Whether or not any rent is in arrears on the date on which proceedings for possession are begun, the tenant has persistently delayed paying rent when it is due.
  • Ground 12: The tenant has breached any of the terms listed in the tenancy agreement (other than that of rent payment).
  • Ground 13: The condition of the property has deteriorated due to neglect or damage by the tenant, or another individual who the tenant has sublet the property to.
  • Ground 14: The tenant is has engaged in activity that has caused a nuisance to visitors, neighbours or other tenants.
  • Ground 14a: For use only by social landlords/charitable housing trusts. If the property is occupied by a couple and one of them leaves due to violence, or threats of violence form the partner (or partners family) who is also living in the property.
  • Ground 15: The condition of any furniture listed on the inventory has been sold, or deteriorated due to misuse or damage by the tenant, or another individual who the tenant has sublet the property to.
  • Ground 16: The property was let to the tenant as a condition of their employment but the employment has now come to an end.
  • Ground 17: The tenancy was granted on the basis of false information provided by the tenant or one of their referees or guarantors.

How long is the notice period for a Section 8 notice?

The notice period that a landlord is required to give to their tenant after issuing a Section 8 notice varies depending on the grounds in which the notice was issued.

  • Ground 1: Two months
  • Ground 2: Two months
  • Ground 3: Two weeks
  • Ground 4: Two weeks
  • Ground 5: Two months
  • Ground 6: Two months
  • Ground 7: Two months
  • Ground 7A: At least a month
  • Ground 7B: Two weeks
  • Ground 8: Two weeks
  • Ground 9: Two months
  • Ground 10: Two weeks
  • Ground 11: Two weeks
  • Ground 12: Two weeks
  • Ground 13: Two weeks
  • Ground 14: 24 hours (If used without Ground 7a. If combined with Ground 7a, a month)
  • Ground 14a: Two weeks
  • Ground 15: Two weeks
  • Ground 16: Two months
  • Ground 17: Two weeks

If a combination of ground 14 and ground 7a are used, the notice period is 24 hours.

How do you serve a notice?

A Section 8 notice is an important document, and you must be sure that you serve it correctly, and be sure that your tenant has received it, in order for it to be valid and the repossession of the property to proceed. You can download a Section 8 notice to complete here.

Be careful to make sure that the tenant’s names and address are completed exactly as they appear on the tenancy agreement, and you are sure to list all of the grounds under which possession is being sought.

If you are using the grounds of rent arrears, make sure the exact figures are noted, and up to date. It is a good ideal to send detailed rent schedules to your tenant (not too often, it could be classed as harassment) outlining outstanding balances and upcoming payments due. Keep a record of all correspondence and try to ascertain in writing the reason for the arrears, and confirm that they are not due to any dispute with you.

A copy of this document should be completed for every tenant, any guarantors that are associated with the tenants (more details of guarantors rights are available here), and the court. You also need to keep a copy for yourself.

Once complete, you need to make sure your tenant receives a copy of the notice. You can deliver this in a number of ways:

Hand delivered

If you choose to hand deliver the form, take an independent witness with you to clarify that the form has been delivered. Your witness should must be over 18, not under the influence of drugs or alcohol and in sane mind. They may have to appear in court later in the process, so make the aware that this may be required. Ask your witness to sign and date a document stating that they accompanied you to the delivery, and witnessed you serving the notice.

Also, take a photograph of you serving the notice at the property. Some digital cameras offer timestamping on images, or there are downloadable smartphone apps that offer this facility, so make sure the image is time stamped too.

If you are able to obtain a signature from your tenant acknowledging receipt of the notice, this is ideal.

First class post

If you cannot, or do not want to attend the property, you can also serve the notice by post. Take the document to a Post Office, where the counter staff can issue you with a certificate to prove that it has been posted, and on which date. Do not use ‘signed for’ postal options.

Don’t forget that you should also serve a notice to any guarantors who are linked to the tenants.

Applying for possession

Once the notice has expired (timeframes above) you can then apply to the court for an order to evict your tenant. The order will also demand that any outstanding rent is paid (if this is the grounds specified) and the tenant may be required to pay the costs associated with the court application.

At this stage, you need to complete the following forms:

Form N5: Claim form for possession of property (download here): This form outlines the ground that you are using. You should complete one copy to be submitted to court, and one copy for each tenant (and any guarantors), and one for you. 

N119 Particulars of Claim for Possession (download here): this form should be used to tell a court why you are seeking possession, for example if a tenant hasn’t complied with tenancy terms  – this is where you give additional information about the tenancy.

N215 Certificate of Service (download here): this form tells the court which documents you served, who you served them on, and when, where and how you served them. It will be used when applying for the final possession order.

Once complete, you can apply to the County Court most local to the property for a hearing. This will cost £355. Take all competed forms, along with any supporting evidence such as witness statements and rent schedules/correspondence. There, the court administrators will prepare a Notice of Issue (Form N206), providing you with a case reference and hearing date. This is usually about six weeks, but can be longer in large towns and cities.

A letter will be sent to your tenant summoning them to court, which they have 14 days to respond to. During a hearing, a judge will examine the evidence provided and decided whether to grant possession of the property.

If the judge is satisfied with your case, you will be granted a Possession Order, giving your tenant a set amount of time to vacate the property. If they fail to do so, court instructed bailiffs can be instructed on your application.

A Suspended Possession Order could be awarded in the case of justifiable rent arrears. If the tenant agrees to pay off the arrears over a set period, the judge may suspend possession, on the basis that payments are made. Should the tenant fail to keep up with repayments, the landlord could reapply to the court and the order would be likely to be granted.

A judge may choose to adjourn a case should they determine that further evidence is needed to come to a satisfactory conclusion, or if the breach is not serious enough to justify a Possession Order.

Proceedings can be Dismissed if the judge deems that the notices have been served incorrectly, lack supporting evidence or the situation is complete. In this instance, the tenant could claim costs against the landlord.

If the judge feels that there is no defence, they could call a summary judgement, and save the cost of the trial by not even bringing the case to court.

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

Both Section 8 and Section 21 notices can be used to serve notice on your tenant, however, that is where the similarities end.

Unlike Section 8, a Section 21 notice is a ‘no fault’ notice, and can be served on your tenant even if the tenancy agreement hasn’t been breached, or property circumstances haven’t changed in any way. As long as the application for the notice is valid, and you have fully complied with all landlord legislation (correctly handling deposit procedure, maintenance and associated paperwork – more details available here) your tenant is unable to defend against a Section 21 notice, and you will be able to gain repossession of your property.

A section 21 cannot be issued until four months into the tenancy, however a Section 8 can be issued as soon as the breach of tenancy agreement has occurred, or in the case of rent arrears, once there are two months monies outstanding. Breach notice periods range from no notice required to two months’ notice.

A Section 21 notice cannot be used to recover any unpaid rent. You can choose to make a separate claim for unpaid rent once you have your property back in your possession at any time within six years.

However, due to the fact that this notice can be used to evict people from their properties when not at fault, a Section 21 does have a two-month notice period. Your tenant will be notified of the date in which they must vacate the property, and if they fail to do so the process can be elevated to court, whereby the court can issue a possession order and an eviction is carried out by court bailiffs.