The Coronavirus Act 2020 delayed when landlords could start proceedings to recover possession of rented property but this stay on possession proceedings expired on 20 September 2020 and landlords are now able to progress their possession claim through the courts.

Bailiffs are able to enforce eviction notices in all local tiers in England after 11 January 2021 and, given the 14-day notice period required, no evictions are expected to be enforced until 25 January 2021 at the earliest. The only exceptions to this are the most serious circumstances: illegal occupation, false statement, anti-social behaviour, perpetrators of domestic abuse in social housing, where a property is unoccupied following the death of a tenant and extreme rent arrears equivalent to 9 months’ rent with any arrears accrued since 23 March discounted.

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 however, if a tenant has done nothing wrong, and you simply want the property back, provided you have complied with the various landlord requirements such as 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 including changes to notice periods

Notice periods for serving either a section 21 or section 8 have been changed as a result of the Coronavirus Act 2020. For notices served between 26 March 2020 and 28 August 2020 the minimum notice period was three months for all claims.

For notices served between 29 August 2020 and 31 March 2021 the minimum notice period is six months, unless exceptions apply such as rent arrears where at least six months’ rent is unpaid, conviction for an offence committed at a riot, domestic violence and acquiring the tenancy as a result of a false statement.

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 Laura Colebrook by telephoning 0118 975 6622 who will be happy to assist you.