Possession Proceedings - Section 8 and Section 21 differences

Under the Housing Act 1988 there are two routes of gaining possession of a residential property let under an Assured Shorthold Tenancy Agreement.

Residential landlords are likely to have come across Section 8 and Section 21 notices when seeking possession. This article summarises the differences between such notices and the circumstances in which they can be used.

The main consideration when deciding which notice to serve is the landlord’s reasons for seeking possession.

Section 8 notices are generally used when the tenant is in breach of the tenancy, for example in rent arrears. Whereas, Section 21 notices are commonly known as ‘no fault’ notices and are used when the landlord requires possession of the property at no fault of the tenant’s actions. 

Another consideration is the timing of the notice. Landlords are prohibited from serving a Section 21 notice to expire within the first four months of the tenancy or before the fixed term has ended. A Section 8 notice however can be served at any time during the term of the tenancy.

A major difference between the notices is the amount of time given to the tenant for them to vacate the property before the landlord can issue court proceedings. This is known as the notice period.

When serving a Section 8 notice, the landlord must state the Grounds upon which they are seeking possession. The notice period contained within the notice will depend upon which ground is being relied upon. The most common grounds of rent arrears or breach of tenancy require a notice period of at least two weeks.  Whereas, a Section 21 notice must contain a notice period of at least two months.

Taking into consideration the timing of the notice, if the tenant has accrued rent arrears the landlord may have the option to serve either a Section 8 or a Section 21 notice. Landlords may choose to serve a Section 21 notice and include rent arrears within their claim as, provided the notice is held to be valid, possession under a Section 21 claim is mandatory meaning the court must award a Possession Order in such circumstances. Section 8 claims on the grounds of rent arrears exceeding two months’ rent is a mandatory ground, however the tenant does have the opportunity to defeat the claim by reducing arrears prior to the hearing and it will then be at the court’s discretion whether to award a Possession Order.

If the tenant fails to vacate the property upon expiry of the notice period, landlords must obtain a Possession Order from the court. Proceedings can be issued using the standard procedure or via the accelerated possession procedure depending on which notice was served.

Landlords requiring possession upon expiry of the Section 21 notice where there are no rent arrears being claimed may consider issuing proceedings via the accelerated possession procedure. Accelerated possession claims are generally dealt with quicker than Section 8 claims as the court will usually deal with the claim without a hearing.

Section 8 claims and Section 21 claims where the landlord is also seeking rent arrears will be issued via the standard procedure where the court will list a hearing before deciding to award a Possession Order.

Due to the no fault and mandatory nature of a Section 21 notice there is a strict procedure to follow to ensure the notice is valid. In order to serve a valid Section 21 notice the tenant must have been provided with the following documents at the start of the tenancy:

1.     Current Energy Performance Certificate

2.     Current Gas Safety Certificate

3.     How to Rent Guide

4.     Tenancy Deposit Prescribed Information

The tenancy deposit must also be protected within a government-backed tenancy deposit scheme within 30 days of receipt.

If you are a landlord or a tenant and require advice and assistance with bringing or defending a claim for possession, please do not hesitate to contact Natalie Peacock on 01603 625231 or by email nlpeacock@cozens-hardy.com

To find out more, call us on: 01603 625231