Taking back possession of your residential property – The Section 8 Procedure
Landlords and agents regularly ask how they can recover possession of a property let to a tenant under an assured shorthold tenancy that is still within its fixed term. It is usually the case that the tenant is in arrears.
A landlord normally wants to recover their property during the fixed term because the tenant is in arrears or has breached the tenancy in another way. Where this is the case, the landlord may be able to commence possession proceedings by relying on Section 8 of the Housing Act 1988 (“the Section 8 Procedure”).
Schedule 2 of the Housing Act 1988 sets out grounds which a landlord can rely upon to seek to recover possession of their property. There are 17 grounds in total with 8 of them being mandatory grounds and 9 of them being discretionary grounds.
The most common grounds are as follows:
Ground 8 – This is a mandatory ground
Where rent is paid monthly, if the tenant is two months in arrears this ground can be relied upon.
Ground 10 – This is a discretionary ground
At the time the Section 8 Procedure is commenced, the tenant is in arrears of rent
Ground 11 – This is a discretionary ground
The tenant has been persistently late in paying rent.
The Section 8 procedure
The Section 8 procedure starts with a notice being served on the tenant. This notice must be in a prescribed form and set out the grounds the landlord is relying on. On the basis that the landlord is relying on grounds 8, 10 and 11, only two weeks’ notice is required to be given to the tenant before possession proceedings can be issued at court. Some of the other grounds require two months notice to be given.
Once the two week time limit has passed, possession proceedings can be issued. If the tenant has paid the arrears then you would lose the right to rely on the mandatory ground 8. However, you could still seek to rely on grounds 10 if some arrears remain and ground 11.
Whether or not a Judge would award possession based on grounds 10 and/or 11 alone would depend on for example, the level of remaining arrears and over what period the tenant has been persistently late in paying the rent. If for example, there remained £50 of arrears and the tenant had been late say once or twice in the last year then a Judge may not grant a discretionary possession order. However, if the tenant has made a nominal payment to reduce the arrears to below the two months threshold by say £10.00 and has been persistently late in paying rent over a prolonged period, a Judge may be more inclined to grant a possession order.
The decision on whether or not to grant a possession order will be made at a contested hearing where the parties put forward their case. Prior to this possession hearing a landlord should file at court and serve on the tenant witness evidence which should confirm the up-to-date arrears and provide a rent statement showing how the arrears have accrued. Further, the landlord should also provide copies of the tenancy and any other relevant correspondence they have for example letters/emails chasing the arrears.
On the assumption a possession order is granted, the tenant will be given normally between 14 to 28 days to vacate the property. If they fail to do so, a bailiff or enforcement officer can be instructed to evict the tenant and where applicable, seek to recover any judgment awarded for the arrears. Please note, if the tenant does not leave voluntarily, you cannot simply evict them yourself.
If you would like further information regarding Section 8 or to discuss any landlord and tenant matter, please contact Mark Fagan on 01423 275 375 or e-mail firstname.lastname@example.org. Mark is a Partner in the Property Litigation department.