Which eviction route should a landlord take, section 8 or section 21 Housing Act 1988? Much depends on whether which process is going to work best to the particular circumstances. It might be unclear from the outset and be best to serve both a section 8 and a section 21 notice and then act upon which avenue is most appropriate at such time.
Generally though, if a tenant has done nothing wrong, and you simply want the property back, provided you have complied with deposit scheme legislation, you can only use section 21. If the tenant has breached the tenancy either through rent arrears (more than 2 months) or some other breach, you can use section 8. However, sometimes, despite a tenant breaching the tenancy, it might be a more efficient process to go through section 21 instead, because possession is mandatory and it’s more difficult for a tenant to cause any delay in the proceedings.
Advantages of section 21
This is often is known as accelerated proceedings, because generally the possession is smoother and mostly paper-based. There are few cases where a court hearing will be necessary. As long as the application is valid, possession must be granted and the tenant ordered to leave. The tenant cannot defend against this action.
If there are rent arrears, then the landlord has 6 years from the date of the breach, to make a separate claim for the debt. Careful consideration is required though because the action may prove fruitless as the tenant may be a ‘man of straw’ and you could be spending good money after bad. For some landlord’s the priority is getting possession back, without a court hearing, which makes the section 21 great for these purposes. This sometimes outweighs the potential delays, stress and risks in trying to recover arrears.
Advantages of section 8
If there are significant rent arrears and the tenant has the means to pay or there is a guarantor, section 8 is the obvious route. Provided the landlord can prove the tenant’s breach of the tenancy under at least one of the mandatory grounds, the court is compelled to grant the landlord possession.
If the landlord has not fully complied with their obligations in respect of the deposit scheme, then section 8 is easier to use than section 21. It’s also useful if there is still a long period until the end of the tenancy.
Factors to consider
Often there can be lengthy delays taking section 8 proceedings. If you want a faster approach to obtain possession then section 21 is generally more appropriate.
You are unable to take the section 21 procedure if a landlord has failed to comply with their obligations in respect of the deposit scheme.
Under section 8, if the court awards you a money order against the tenant, you still have to act on the order to recover the money from the tenant. Enforcing a Judgment can be costly to pursue with no guarantees of success.
Under section 8 proceedings, if you lose you may have an adverse costs order against you and have to pay the tenant’s legal costs.
I would like further information, who should I contact?
If you would like advice on any property related issue, please do not hesitate to contact one of our Dispute Resolution and Litigation Solicitors, Laura Colebrook or Laura Ellis, by telephoning 0118 975 6622 or by clicking on their names above. They will be happy to have an initial conversation with you.