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Evicting a tenant - Section 21 or a Section 8 notice?

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Which notice should the landlord use to evict a tenant? Both forms are used to serve notice to tenants, but they are noticeably different, and it is extremely important to serve the correct notice to avoid unnecessary delays and expenses.

What is the difference between the two notices?

A Section 8 notice should be served when a tenant is in breach of the tenancy contract and the landlord has grounds for possession. The most common ground for eviction is rent arrears. If the tenant is persistently late with rent or owes more than two months’ rent, or has breached the tenancy in another way, the landlord can serve the Section 8 notice at any point during a tenancy.

A Section 21 (also known as form 6A) is a ‘no fault possession notice’. It should be served to end an Assured Shorthold Tenancy Agreement so the landlord can regain possession on the last day of the fixed term of the tenancy or afterwards during a periodic tenancy. The landlord does not have to give a reason for wanting to take possession of the property other than he/she simply wants the tenant to vacate.

Advantages and disadvantages of a Section 8 Eviction Process

Section 8 is the obvious choice if there are large rent arrears and the tenant has means to pay or there is a guarantor. It should be used as the start of the process to evict the tenant and regain possession because the tenant is in breach of the agreement. If it can be proved that the tenant has breached at least one of the mandatory grounds, the court is obliged to grant the landlord possession. This of course can be disputed by the tenant in court, which may prolong the eviction process, and consequently allow the tenant to remain in the property.

The most common reasons for serving a S8 notice are non-payment or late payment of rent, damage to the property or its contents, or disturbance of neighbours and other local residents.

Under Section 8, if the landlord loses, he/she may have the tenant’s legal costs awarded to pay as well. Furthermore, even when the court gives a money order against the tenant, the landlord still have to act on the order to recover the money from the tenant.

Advantages and disadvantages of a Section 21 eviction process

There is a lot less legal hassle and implications when serving a Section 21 notice when compared to a Section 8 notice. On a Section 21 notice, as mentioned, a landlord does not need any reason for regaining possession and there are no grounds to prove. Even if the tenant refuses to vacate after a Section 21 notice is served, as long as the notice is valid and the court is satisfied that it has been correctly served, they will grant the landlord possession of the property and the tenant will be ordered to leave. The tenant cannot defend this action.

This is much easier and, when the application gets to court, it is certainly quicker. However, a Section 21 notice has to give the tenant a minimum of two months’ notice, so it does mean there is quite a long wait for the landlord.

If you have any concerns over which eviction process to use, please contact Lochana Gabrielsen.