The 1st of October 2021 couldn’t arrive quick enough for many landlords. After almost 19 months, the notice periods landlords must give to tenants before court possession proceedings can begin have returned to pre-Covid lengths. In practical terms, for many landlords who have had tenants who have fallen into serious rent arrears, the minimum notice period before court possession proceedings can begin when serving a Section 8 Notice is to 2 weeks. However, since the new changes came into force on 1 October 2021, we set out four mistakes every landlord should avoid when serving a Section 8 Notice seeking possession.
1. Use the correct amended form
Landlords should ensure they use the correct amended “Form 3 – Notice of intention to begin proceedings for possession of a property in England let on an assured tenancy or an assured agricultural occupancy”. This was previously known as “A Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy”. In addition to a new name, landlords will notice that that the detailed notes which were found on the original Section 8 Notice form have now been removed and are found on a separate document. Landlords should provide this additional separate document on tenants at the same time as serving the Section 8 Notice. The notes help landlords and tenants understand their rights and responsibilities.
2. Consider whether the tenant is part of the “Debt Respite Scheme”
The Debt Respite Scheme (Breathing Space) gives someone in problem debt the right to legal protections including “Breathing Space” from their creditors. If rent arrears are included as a ground for seeking possession of a residential property, enforcement action generally cannot take place during the “Breathing Space”. The “Breathing Space” will usually last 60 days, and landlords should receive notification from the Insolvency Service if a tenant has been provided with “Breathing Space” and also a further notification once the period of “Breathing Space” has ended.
If a landlord has a tenant in rent arrears and has received notification from the Insolvency Service that the tenant is part of the Debt Respite Scheme and is therefore provided with “Breathing Space”, landlords must not:
a. Contact the tenant directly about the rent arrears and instead the landlord must liaise with a debt advice provider who will be allocated to the tenant.
b. Serve a Section 8 Notice on rent arrear grounds (grounds 8, 10 or 11).
c. Commence a claim for possession where a Section 8 Notice has already been served on the tenant.
3. Give a full explanation of why each ground is being relied on in the Section 8 Notice
Quite often, we notice many landlords are simply too brief when answering Section 4 of the Section 8 Notice “why each ground is being relied on”. We find that well drafted Notices are those which go into sufficient detail in explaining exactly why each ground is being relied on and providing as much evidence to substantiate each ground. For example, where there are rent arrears, a detailed rent arrears schedule should be attached to the Notice. Where there are other breaches of the tenancy agreement, setting out the detail and being as specific about the breaches will be helpful and assist when drafting the claim form and particulars of claim. The Section 8 Notice invites landlords to “continue on a separate sheet if necessary” and therefore, landlords should not hesitate to do so if necessary.
4. Ensure the Minimum Notice Periods are correctly calculated
In section 5 of the Section 8 Notice, landlords must insert a date on or after which they may commence a claim for possession in the county court. The date must take into account the period of notice that you are required to give the tenant under the ground(s) for possession that you are relying upon. It must also take account of when and how the notice will be given to the tenant.
See the table below for the notice period associated with each ground.
|Minimum Notice Period|
|1,2,5,6,7, 9 or 16||· 2 months.
· (If the tenancy is a periodic tenancy: the earliest date on which the tenancy (had it not been assured) could have been brought to an end by a notice to quit served at the same time as the notice, if longer than 2 months.)
|3, 4, 7B, 8, 10, 11, 12, 13, 14ZA, 14A, 15, 16 or 17||
· 2 weeks.
|7A||· If the tenancy is a fixed term tenancy: 1 month from the date the notice is served on the tenant and
· If the tenancy is a periodic tenancy: the earliest date on which the tenancy (had it not been assured) could have been brought to an end by a notice to quit at the same time as the notice.
Should landlords require any assistance with drafting Section 8 Notices, drafting Section 21 Notices, commencing possession proceedings or navigating the recent changes to possession proceedings, please do not hesitate to contact Pranav Bhanot at Meaby & Co Solicitors on firstname.lastname@example.org