POSSESSION: SECTION 8 NOTICE.

In order for a landlord to start possession proceedings against an Assured or Assured Shorthold tenant before the fixed term has come to an end, the landlord will need to serve notice of his intention to seek possession.

This is known as a Section 8 Notice and it must be in a prescribed form.

Possession proceeding under section 8 of the Housing Act are fault based. This refers to the fact that the tenant has breached the terms of the Tenancy.  Most commonly this will be failure to pay the rent

Completing a Section 8 Notice

It is important to check with the courts or law stationer that the landlord is using a current section 8 notice form or the case will be dismissed.  A landlord needs a minimum of 3 copies.

The address of the residential investment property must be in full and totally unambiguous.  The grounds that possession is being sought on should be fully detailed using the exact words cited in the act i.e. the exact wording as stated in the grounds of possession.

The landlord should detail the reasons why each ground is being relied upon e.g. if the ground is for rent arrears, attach a schedule of rent payments, when they were due, payments that have been missed etc.

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If there is more than one tenant the section 8 notice should be addressed to all tenants jointly, (unless each tenant has a separate tenancy agreement).

For Proceedings Date, the landlord should specify the date when the section 8 notice expires.  This is normally 2 weeks or 2 months from the date of the notice.

Read more about grounds of possession.

Serving Notice

Once the section 8 notice has been completed in the correct form, it must be served on the tenant or tenants either in person or by post.

When serving a notice by post, the landlord should either send it by registered post or recorded delivery so that the landlord has a proof of posting.  The disadvantage of this method of service is that tenants can refuse to take delivery and it will be returned, or they may claim that an empty envelope was sent.

Personal service is always the preferable option for landlords to use to serve the section 8 notice.  If the landlord puts it in the tenant’s letterbox with a witness, then it is deemed to have been served the next working day.  This means that the landlord will need to discount weekends and Bank Holidays and start the notice period after that.  If the landlord cannot find a witness then personal service is still preferable to sending it by post.  The landlord should always remember to take a copy of the section 8 notice and record the date it was sent or delivered to the residential investment property.

A possession action (court hearing)

The landlord can initiate proceedings as soon as the Section 8 Notice has expired.  A landlord has then to complete following forms:

County Court Forms N5 & N119.

For a copy of the County Court Forms N5 & N119 landlords can go here

Form N5 summons for possession of a residential investment property.  One copy should be completed for the court and one copy for each defendant.  The landlord should complete both the claimants and defendants names in full.

Form N119 Particulars of claim for possession in cases of non-payment of rent (this does not need to be completed where possession is not sought on the grounds of rent arrears).  The landlord should complete one copy for the court and one for each defendant.  Paragraph 3b of the form N119 can be used by the landlord to add further grounds for possession other than for rent arrears.  The landlord should always give the court as much information as possible.  The landlord should note that they as the claimant can claim interest on rent arrears at the prevailing bank rate from the date that shortfall occurred.

The relevant form(s) are then sent together with the appropriate court fee to the county court.  The landlord should always check with the court which are the correct forms and how much the fee is as both are subject to periodic change.

The particulars of the claim must be in the correct form and the grounds for possession must be specified.  If the landlords action is for rent arrears then all details must be given.  Details of all the steps the landlord has already taken to recover rent should be detailed, as should the tenant’s financial circumstances (if known).

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The court will prepare a notice of issue (form N206) which will include the case number and hearing date and will normally serve the summons and other documents on the tenant.  These are normally posted and the landlord will be notified of this.  If the landlord is serving the documents themselves then  the court will hand the landlord back both copies together with form N215 (affidavit of Service).  Again the tenant has 14 days to reply on the form given to him.  A court hearing cannot take place for at least 4 weeks or any more than 8 weeks after commencement of the proceedings.

The landlord should attend the hearing where he will be asked to present the tenancy agreement and the relevant notices and give evidence to prove the landlords claim for possession.  The tenant is entitled to attend and make their own representations.

Summary Judgements

Summary judgment is a legal term which means that a court has made a determination (a judgment) without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case.

Summary judgements have been a useful procedure for dealing swiftly and cost effectively with claims that have no defence.  While no court is going to grant summary judgement against a tenant defending his right to stay in his own home unless the case against him is convincing, the courts have been able to grant summary judgements against residential tenants whose defences were bound to fail at trial.

Despite this since the 26th April 1999 any residential tenant who puts in a defence, the facts of which he is prepared to verify is true and which disclose a defence in law, will force a landlord to the expense and delay of a trial.  The most common defences against possession are harassment and disrepair.  Landlords should take steps to protect themselves from these allegations.

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