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These are the key points to consider before serving a Section 21 or Section 8 notice.
There are two main routes for landlords to regain possession of their properties: Section 21 and Section 8 notices. Both routes have their advantages and disadvantages, and it is important for landlords to understand these differences before proceeding with an eviction.
General Process
The usual process for evicting a tenant from residential property involves:
- Issuing the appropriate notice to your tenant
- Issuing possession proceedings through the local county court if the tenant does not vacate
- Obtaining an order for possession (at a hearing if necessary)
- Instructing bailiffs if necessary to enforce the possession order and evict the tenant
Section 8
When can the Section 8 Procedure be used?
- The tenancy must be an Assured or Assured Shorthold Tenancy in England and Wales.
- The tenancy must have commenced after 15 January 1989.
- The necessary notice must be given.
- You must prove one or more of the relevant mandatory or discretionary grounds.
Positives & Negatives of the Section 8 Procedure
| Positive | Negative |
Notice can be served to terminate the tenancy before the end of the fixed term | Can be expensive |
Can have a shorter notice period dependent on the grounds used (2 weeks’ to 2 months’) | Longer notice period especially where rent arrears or anti-social behaviour is involved |
Flexibility to pursue possession based on various grounds, more control over the eviction process. | More complex and slower process, involving Court proceedings with higher evidentiary threshold |
Possibility of rent arrears recovery at the same time as possession claim | Tenants may raise defences or counter claims in response to the section 8 notice – leading to delayed or protracted proceedings |
Section 21
When can the Section 21 Procedure be used?
- The tenancy must be an Assured Shorthold Tenancy in England and Wales.
- The tenancy must have commenced after 15 January 1989.
- The required prescribed information and mandatory certificates must be provided to the tenant.
- The necessary notice must be given.
- If a deposit was taken from the tenant, this must have been protected under an authorised Tenancy Deposit Protection Scheme.
- No rent arrears are claimed.
Positives & Negatives of the Section 21 Procedure
| Positive | Negative |
Can be faster way to regain possession | Cannot claim for rent arrears, to do this it is necessary to use the standard possession procedure, or issue a separate debt claim |
Allows landlord to gain possession without having to establish fault or prove breach of tenancy | If a fixed term tenancy – cannot evict until more than 4 months has passed since the tenancy started or the fixed term ends |
Can often be dealt with without a hearing | If periodic tenancy have to wait until after the first 6 months of the tenancy |
Provided statutory provisions are complied with is a safer route to possession | Any errors in service of the s21 notice or application could lead to a hearing, or the claim being dismissed with the risk of an adverse costs order and having to restart the process |
Please see our latest articles on changes to the section 21 possession procedure. Landlord and Tenant Update - Clarkson Wright & Jakes Solicitors (cwj.co.uk)
How Can CWJ Help?
If you are considering evicting a tenant, and would like further advice, we can offer advice on a range of landlord and tenant issues. We are able to provide you with your options when seeking to evict a tenant and regain possession of your property. Please contact a member of our team on 01689 887887.