What is the Section 8 eviction process
Landlords can follow this procedure to regain possession of their rented property in cases where a tenant has breached the terms of their tenancy agreement
Top tip: Situations sometimes arise where the landlord/agent needs to evict a tenant during the fixed term of the tenancy – often for rent arrears – in which case Section 21 cannot be used.
The tenancy agreement should have provision for this eventuality and the landlord / agent can seek possession using Section 8 of the Housing Act 1988 under Section 2.
There is one exception - if there is a break clause in the contract this could be exercised and then Section 21 can be used.
There are 17 grounds for possession under Section 2 - some of these are mandatory, where the court must order a possession if proven, while others are discretionary, where the judge decides.
The most common reason for landlords evicting their tenants is rent arrears, and this comes under one or more of the mandatory grounds.
Tenants must be a minimum of two months’ in arrears before notice can be served and before the landlord can apply for a possession order.
An important point to remember however is that if the landlord pursues the tenant to court, which involves a court fee, and the tenant pays off enough of the arrears to bring them below two months equivalent, the landlord may well not get the order that helps them evict as quickly as possible.
Documentary evidence is key in the case of Section 8. Whether this be bank statements and standing orders to show the tenant is in arrears, or witness statements and criminal reports in the case of anti-social behaviour, the judge will want to see these before issuing an order.
In rent arrears cases a very clear rent schedule is paramount, and in other cases, particularly for anti-social behaviour, witness statements or witness attendance may be necessary.
A Section 8 notice of usually 14 days is served on the tenant by the landlord or agent seeking possession of the property, when there has been a breach of the contract, using the correct notice.
In step two, if the tenant fails to respond or vacate, the landlord applies to the court for a hearing before a judge using the particulars of claim form (N119). The landlord will be required to attend the hearing if it goes to court, or appoint an agent or solicitor to attend on their behalf.
The court will send the tenant details of the possession claim and details of the grounds on which possession is being sought. The tenant at this point can file a defence or even a counterclaim. There is a risk here as counter claims may entail extended legal processes running up costs, which is why Section 21 is usually preferred.
If there is a hearing the landlord, agent or solicitor must be fully familiar with the tenancy and have all relevant facts and documentary evidence to hand, including the tenancy agreement, an up to date schedule of arrears, or other relevant evidence supporting the claim.
If the claim is successful, the judge will usually grant a possession order; this means the tenant has a limited time to vacate unless it is granted an extension of up to 42 days. In the event the tenant does not vacate at the required time, the landlord will be required to apply to the court again for a bailiff to carry out the eviction. In addition, a judgement for the arrears of rent may also be granted, at which point a landlord may also make a claim for interest and costs.
All of this draws out the time it takes to complete an eviction, often in excess of four to six months, and with difficult tenants it can be delayed much further, especially if more hearing dates must be set, for example if expert witness reports are needed.
Landlords should avoid having heated arguments with their tenants during eviction disputes. Harassment is a criminal offence under the Protection from Eviction Act 1977.
It is sometimes prudent to let an agent deal directly with a troublesome tenant for this reason, or simply deal through correspondence, being careful not to use threatening language.
It’s a good idea to keep a diary of events, phone calls, emails and written correspondence with your tenant/s when in a dispute, as this will form the basis of your case evidence.
