If you’re a landlord, Section 8 and 21 Notices are two methods you can use to legally terminate an assured shorthold tenancy agreement (AST) and require the tenant to vacate your property. The Housing Act 1988 governs both Notices, and they both have their uses. If you’re looking to evict a tenant for misconduct such as nonpayment of rent — or any other reason — which Notice should you use? Or should you use both? Find out more about when and which Notice to use, and the differences between them below.
What is a Section 21 Notice?
Currently, a Section 21 Notice is the go-to route for most landlords seeking to remove a tenant. Sometimes called a ‘no-fault’ notice, you can use Section 21 to evict your tenant without having to give a reason. Even if you are evicting the tenant due to their misconduct, you do not need to confirm this to the Court.
Pros
- You don’t have to give a reason for terminating the AST.
- If your paperwork is in order and you’ve completed and delivered the Section 21 notice correctly, it’s difficult for an AST tenant to challenge the notice.
- The accelerated Section 21 procedure is usually a paper-based exercise that doesn’t require a hearing, saving you time and money.
- The tenant is not able to counterclaim in accelerated possession proceedings (although they can make a counterclaim at a later date in separate proceedings).
Cons
- You cannot serve a Section 21 Notice during the first four months of the tenancy.
- The notice period is two months, meaning you must wait at least six months from the start of the AST before regaining possession of the property.
- A Section 21 Notice cannot end the tenancy earlier than the minimum fixed term period agreed in AST.
- You must be in compliance with requirements like deposit protection and providing prescribed information like gas safety certificates and an EPC. If you haven’t, the Notice will likely be found invalid.
- You cannot claim any rent arrears if you opt for accelerated possession. Section 21 notices are used to regain possession of your property only.
What is a Section 8 Notice?
A Section 8 Notice allows you to take legal action when an assured or an assured shorthold tenant has breached the terms of the tenancy agreement. If you can prove your tenant’s breach warrants eviction under a mandatory or discretionary ground(s) for possession, as listed in Schedule 2 of the Housing Act 1988, a Section 8 Notice can be a powerful tool.
Pros
- Fixed-term tenancies can be terminated before the term expires
- The notice period can be as short as fourteen days
- Possession proceedings may be started for certain breaches of the tenancy agreement as soon as the landlord serves the Notice.
Cons
- Grounds for possession are required for serving a Section 8 Notice. The Housing Act 1988 lists mandatory and discretionary grounds for possession. Your tenant’s breach must fall within at least one.
- A hearing of the claim will be listed in the local county court, which can lead to significant delays. If the grounds for possession are in dispute, your tenant could mount a defence of the claim and/or pursue a counterclaim. Typically, this means delaying or failing to repossess the property — and potentially costly legal fees.
- Grounds 9-17 of a Section 8 Notice are discretionary. The Court will apply a test of ‘reasonableness.’ There’s always the risk it will find in favour of your tenant, and you’ll be back to square one. Overall, using discretionary grounds for possession under Section 8 can be risky.
Differences Between a Section 8 Notice and a Section 21 Notice
- Reasons for the Notice – Under Section 21, a landlord doesn’t have to provide a reason for serving the Notice. With a Section 8 Notice, the landlord must select at least one of the discretionary or mandatory grounds listed in the Housing Act 1988.
- Hearings – If your tenant is disputing the grounds for possession or making a counterclaim, a Section 8 Notice will always require at least one hearing. If you opt for a Section 21 Notice and the accelerated procedure for possession only, it can be a paper-based process requiring no hearings.
Contact Helix Law. It’s essential that you choose the correct Notice — or Notices — to pursue a tenant for a breach of the agreement and/or to regain possession of your property. If you’re looking to achieve the best possible outcome, It’s vital to seek professional legal advice. Contact Helix Law’s specialist team for landlords for comprehensive and strategic advice. We aim to respond to all queries in under an hour. If serving a Section 8 or Section 21 Notice (or both) is the best way to achieve your ultimate goals, we will ensure the correct Notices are served and help ensure a swift and cost-effective result.