Section 8 notice (grounds-based possession)
Last updated 1 June 2021 - new notice periods and new Section 8 form from 1 June 2021, completion instructions for new form
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The Housing Act 1988 and its subsequent amendments lays down certain circumstances or grounds under which a landlord applying for possession of a residential property may be successful. A landlord may use one ground or a combination of grounds if appropriate.
The grounds for possession fall into two categories:
- mandatory; the judge must grant possession if the landlord can prove the ground exists, and
- discretionary; the judge has discretion on whether to grant possession
For assured shorthold tenancies most landlords prefer to serve a Section 21 notice instead as it is generally seen as more effective. However, as this notice cannot expire before the end of the fixed term, the Section 8 notice is a very useful tool if you are still inside the fixed term of the tenancy and the tenant is causing serious issues that cannot be resolved.
When can I serve a Section 8 notice?
A Section 8 notice is available where you have granted an assured or assured shorthold tenancy and one of the grounds for possession apply.
In practice, most landlords only use this notice where the tenant is in at least two months of rent arrears and the fixed term of the tenancy has still got some time to run. In most other situations where a ground applies, the majority prefer to use the Section 21 notice instead.
However, as of the recent updates to notice periods, landlords may find that Section 8 notices are now preferable in cases where the tenant has engaged in anti-social behaviour or where rent arrears total six months or more.
Where can I find the Section 8 notice?
The Section 8 notice is required to come in the prescribed form by the Government (Form 3). This is available from the Government's website. This document was updated on 29 August 2020.
Completion instructions for Section 8 (Form 3)
The NRLA has produced some completion notes to guide you through filling out the latest version of Form 3 (Section 8 notice). These completion notes are for the June 2021 edition of Form 3, available on the Government's website.
The remaining resources and guidance on this page are available exclusively to members of the NRLA.
On this page we provide -
- completion instructions for filling out the form
- guidance on how coronavirus has affected possession rules
- what you should do before seeking possession
- tips on serving the notice
Changes to the prescribed Section 8 form
A new Section 8 notice (form 3) will be available on the gov.uk website on, or near to 1 June 2021. The Section 8 notice is a prescribed form, and using an out of date version of a prescribed form can lead to your notice being declared invalid.
To avoid this happening you should check the gov.uk website and check that the latest version of Form 3 has been updated on or after 1 June. If it hasn't then you should wait to serve notice until an updatyed version is available.
You should also avoid serving a notice in the two working days prior to each of these dates, particularly if you are serving the notice by post. This is because the wording of the prescribed form may be updated between you serving the notice and it being deemed received by the tenant.
Where do I find the mandatory and discretionary grounds?
All of the grounds that can be used for a Section 8 notice are found in schedule 2 of the Housing Act 1988. This version includes all additional mandatory and discretionary grounds.
Typically, landlords will use Grounds 8, 10 and 11 for rent arrears, ground 12 for breach of tenancy and ground 14 for anti-social behaviour. In addition, as the police have become more comfortable with applying for closure orders on a property, ground 7a has grown more popular with landlords.
When you are filling out the Section 8 notice you must ensure you are putting the full text of each ground from schedule 2 that you are relying on in the Section 8 notice.
For guidance on when you can and cannot use a specific ground, please see our guide to the various mandatory and discretionary grounds.
Last Updated: 02/06/2021
Guidance on the various grounds for possession.
Proof of service
When you, or your agent serve the Section 8 notice, you should ensure you keep some evidence of serving it in case you need to rely on it later in court.
The evidence you need will vary but depending on the type of service your evidence can include:
- a copy of the Section 8 that has been signed by the tenant;
- a time-stamped photograph of the Section 8 notice and a further photo of it being posted through the door of the property;
- proof of postage to the correct address;
- a completed certificate of service (N215 form) available from the gov.uk website.
You should always retain a copy of the Section 8 notice that you served on your tenant.
What must a judge consider before granting possession for a discretionary ground?
Judges are expected to weigh up a number of factors when deciding whether or not to grant possession. This can include the seriousness of the fault, whether it jeopardises the landlord's ownership of the property, the impact of eviction on the tenant and the public interest to neighbours of evicting the tenant. If, based on the evidence and the circumstances, they are not satisfied that there is enough to warrant possession then a judge will not grant possession.
Given the difficulties in establishing possession is warranted, landlords who intend to seek possession under Section 8 should always look to include a mandatory ground where possible.
My tenant has entered into a breathing space debt moratorium. Can I serve a Section 8 notice?
As of 4 May 2021, if your tenant has entered into a breathing space debt moratorium then you may not serve a Section 8 notice if it includes grounds 8, 10 or 11 (the rent arrears grounds) while the breathing space is ongoing.
Similarly, you may not apply to court or apply for a warrant using a Section 8 notice that includes grounds 8,10 or 11 while a breathing space is in place.
For further information on breathing space, see our guide below.
My tenant is engaged in anti-social behaviour, what do I need to think about?
At the time of writing, including anti-social behaviour grounds on a Section 8 notice will drastically reduce the notice period of a Section 8 notice. However, landlords should be cautious in including these grounds without having compelling evidence of anti-social behaviour and its impact on neighbours and contractors. Anti-social behaviour is a complex area of housing law that cuts across a number of areas and landlords should seek legal counsel before proceeding to include an antisocial behaviour ground on their notice.