Section 8: Repossessing where your tenant is in arrears

Following the abolition of Section 21 under the Renters’ Rights Act, you will now need to use the grounds-based process under Section 8 to take back possession of your rental property. In our latest deep dive we look at what to do if your tenant falls into arrears.

Rent arrears is historically the most frequently used ground for possession – by some distance – however it has been changed quite substantially by the Renters’ Rights Act. 

There are three possession grounds for rent arrears (Grounds 8,10 and 11), and you should use all of them together to have the best chance of success.

When can I serve a section 8?

To serve a Section 8 under Ground 8 your tenant must be at least  

• Three months' arrears if the rent is paid monthly 

• Thirteen weeks’ arrears if the rent is paid weekly or fortnightly 

However, beware; the tenant must have those arrears at the point you serve notice and the date of the possession hearing. If your tenant pays down some of the arrears taking them below these thresholds ahead of your court date then the ground will not be usable.  

In these cases, if you also included ground 10 and 11 on your Section 8 notice, then those grounds would still be usable, and a judge could still grant a possession order on that basis.

How do I serve it?

The Section 8 notice is a prescribed form, meaning it must contain wording mandated by the Government. The new version, form 3a, is available to download from the Government website.  

It needs to include: 

• The full name of all tenants 

• An accurate date on which you may apply for possession 

• The full legal text of each ground that you are relying on (which you can find in our completion notes here.) 

• An explanation of why you are relying on the possession ground 

• Your details (or your agent’s) and a signature  

To support you in making an application, we have also provided completion notes that explain what to include in each part of the form 3A, as well as guidance on what to consider before serving and how to evidence service.

Once this is complete, you can serve the section 8 notice on your tenant. 

We recommend that you serve this notice with a covering letter encouraging the tenant to make payment of the rent, and a rent schedule to outline exactly what their arrears.  

If they fail to leave once the four week notice period has expired, you can apply to the courts to have the property repossessed.

What else do I need to know?

When it comes to calculating the arrears owed, you are unable to take any arrears built due to delays in Universal Credit payments into account. 

You should also be aware that if the tenant pays by cheque before the hearing and the cheque has not cleared, possession may be adjourned to allow this to happen. 

You also need to make sure you are fully compliant. This means ensuring: 

• Your paperwork is filled in accurately and in full. 

• Your tenant’s deposit has been properly protected. 

• The property is properly listed on the landlord database, once live.

Can the tenant make a counter-claim?

Your tenant could also claim in court that the rent owed should be offset against compensation owed by you, the landlord, for example if a rent repayment order offence has been committed, or there is an issue with disrepair. 

Be aware: Tenants may also have a defence if they establish that the rent is not lawfully due. For example, if the landlord has not provided an address for the service of notice, then no rent is lawfully due until they do.

What evidence will I need to provide in court?

As outlined above, to evidence the arrears, we recommend you fill out a rent schedule and attach it to the Section 8 notice when serving it on your tenants.  

If the tenant refuses to go you can then use the rent schedule as part of your evidence bundle when applying to court. 

You can download a rent schedule template for free from our website here. 

You should also attempt to evidence that you have tried to get the tenant to pay the rent due, and that you tried to determine if any rent is due to delays with Universal Credit payments. 

You can do this by getting in contact with your tenant in writing, and – again – we have a number of templates available to support you with this.

Other arrears grounds

Ground 8 is a mandatory ground, meaning that provided you can prove the tenant owes enough rent arrears, the court lawfully has to grant a possession order. 

There are two discretionary grounds covering rent arrears, which the court has the power to decide wther or not to grant a possession order. 

• Ground 10 – where some rent is unpaid  

• Ground 11 – for persistent rent payment delays

When would I use these grounds?

Ground 10 can be used where some rent is unpaid on the day the notice is served, and the date possession proceedings began. 

This provides some protection if the tenant pays off a small sum of the arrears to bring themselves below the threshold for using Ground 8. 

Ground 11 can be used in cases where the tenant has persistently delayed paying rent that has become lawfully due.  

It applies whether or not any rent is in arrears on the date on which proceedings for possession are begun and again could be appropriate where tenants are persistently missing or delaying payments. 

The minimum notice period for both of these grounds is, again four weeks and we would advise that If you use Ground 8 to include Ground 10 and 11 on the Section 8 notice to ensure these options are open to you.

More information

• To visit our Renters' Rights Hub, packed with information and resources to help you manage the transition, click here.      
• For specific guidance on using section 8 click here.
• The NRLA's award-winning training academy has comprehensive Renters' Rights Act training offer - including a deep dive on ending a tenancy. Click here to book your place.
• In addition to this we run a bespoke  elearning training course focussing on the use of section 8 grounds which is just £37 for members. Click here to find out more.
• To find out more about how section 8 grounds might work in practice watch our Listen Up Landlords episode (below) which explores the issue in more detail.