The very fact you’ve arrived at this page probably indicates that you are a Landlord and your tenant is in breach of his/her/their short term residential tenancy, probably an Assured Shorthold Tenancy (AST).
As you may already also know (although see more below), whilst there are a number of grounds for seeking possession of your property under Section 8 of the Housing Act 1988, by far the most common reason for serving a section 8 notice is due to non-payment of rent.
The first and perhaps most important thing to understand is that the process may not work for you, certainly in the short term. Unfortunately, many tenants treat the process as a game and are aware of how to play it. With this knowledge you can perhaps at least make better and more informed decisions.
Tenant in arrears with rent
If your tenant is in arrears, as with any monetary claim, the first thing I recommend you try to establish is whether it’s a can’t pay or won’t pay scenario. This, of itself, is not always easy, as many tenants may be cagey. It may be easier to ask the question “does the tenant have anything to lose by not being honest with me ?” Also, are there any rent guarantors ?
The reason these questions are important is because you need to understand that many tenants, once they stop paying rent, will still try and remain in your property for as long as possible, rent free.
If you believe the above to be the case, you may then need to ask yourself, would you be better serving (if you haven’t already) a section 21 notice and then proceeding when the tenancy expires under the so-called accelerated possession procedure ? You won’t be able to claim money using that process and it’s still not fast, but at least, if your notice and paperwork is in order you will get an order for possession. You may choose to use both the section 8 and the section 21 procedure, but you will incur the court fees for both.
What games do tenants play ?
I cannot in all honesty say that every claim for possession I have been instructed to proceed with has involved a dubious defence, but there are plenty of instances.
The problem you have as landlord is that, having served your section 8 notice, waited the requisite 2 weeks and then issued court proceedings, you will then get a hearing date. All too commonly, the tenant will get legal advice or read up on the internet and will turn up at the hearing date and claim :-
- to have not received the Section 8 Notice
- disputing the alleged rent arrears based on a claim to be entitled to withhold money due to repairs.
- the right to make a counter claim based on the property being in disrepair or for harassment.
- that you have failed to comply with the deposit laws
Other tactics that are not that unusual are for the tenant to make a small payment towards the arrears, perhaps to bring the level below the required amount for a mandatory order or to claim that they have a defence or counterclaim but are unable to attend court due to ill health.
In short, the above may well be delaying tactics – in the case of allegations of disrepair or a counterclaim, in most cases you will end up in a long drawn out matter which may last many months, as the court will set a procedural timetable for evidence and so on. In this scenario, with the tenant continuing not to pay rent, you have a nightmare scenario, and may have been better off using the section 21 process if the tenancy is fairly short.
Possible tactics for landlords before using a Section 8 notice ?
Bearing in mind the most common tactic of defendants is to allege disrepair as a defence in the form of set off, it make sense for a Landlord to try and have evidence available that this is incorrect. The problem is, how do you obtain that evidence when you do not have the right to enter your own property without the current tenants consent ?! In fact, any attempt to access the property without the tenants consent, even if they are in complete breach of the tenancy agreement and/or even damaging your property, may well constitute harassment which has harsh penalties, both civil and potential criminal as well.
The potential solution to the above is to spot the issue early and act before the tenant realises they are playing a game. A possible way to do this which is sensible and in fact legally necessary in some respects (such as annual gas safety checks) is to obtain the tenants consent to enter the property to check utilities or the condition. As long as you have express consent there should be no problem. A clear schedule of condition at the outset, with photographs and appropriate certificates of safety and compliance may also help, especially with a short term tenancy.
However, do not assume, even if the tenancy agreement expressly states that you may access the property, that it’s legally safe to do so without the consent of the tenant. this can be very dangerous, as advised above.
Another option, if the tenant has stopped paying the rent, is to act quickly and write a suitable letter to the tenant, before considering serving a Section 8 notice, asking the tenant what the problem is – why are they not paying the rent ? If the tenant replies and does not mention any disrepair or other issues other than financial hardship, this will be useful evidence for you. The fact a tenant may not answer at all may also be useful as you will have give the tenant an opportunity to raise any defence or complaint and can ask the court to infer from the silence.
Unfortunately, whilst these steps may be very useful in avoiding a long drawn out claim, they may well not result in a court making a possession order at the first hearing where the tenant may turn up and raise the allegations for the first time.
Section 8 grounds
The full text of the grounds is here for easy reference. The most important things to understand are that :-
- some of the grounds, if made out at the court hearing with no valid defence or counterclaim, are intended to result in a mandatory order from the court for possession. Other grounds are expressly discretionary. Grounds 2 to 8 of a section 8 notice are mandatory, grounds 9-17 are discretionary, meaning that the court will not necessarily rule in the landlord’s favour even if he can prove that one of the grounds applies. In these cases it is at the court’s discretion whether to grant a landlord a possession order. They will weigh up the facts and make a decision based on what they see as fair and reasonable.
- it is possible, and in fact usual, for Landlords to claim under more than 1 of the grounds, especially when claiming for rent arrears i.e landlord will commonly claim under the mandatory ground, where available, and the discretionary ground, so both grounds, and possibly others should be included in the formal notice
- it is vital to properly complete the Section 8 notice. Defects may well result in having to start again, involving a considerable time delay.
We advise many landlords on problems with residential tenants and on the best ways to recover possession. If you need help and advice, please do get in touch. The first discussion is free and many of our services are offered on a fixed fee basis.
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