Section 8 notice whilst hearing pending?

#1
Having served a Section 21 notice on our tenant back in February, we successfully obtained an Order for Possession. However, just as we were about to authorise the Bailiffs, we received a letter from the court saying the tenant had made a request for the order to be set aside, and a hearing has been listed for 28th August. He is claiming that he didn't get the Section 21 notice (we can prove otherwise), and also that he never received the correct 'prescribed information' relating to how his deposit is being kept (it is registered with DPS). We now understand from our solicitor that a Section 21 notice becomes invalidated if the deposit was not re-protected, and the prescribed information re-issued, with every new tenancy agreement, or when a tenancy moves from a shorthold to a periodic tenancy. Our tenant has signed several successive AST tenancy agreements, the last one being signed on 2nd October 2013 and we issued the Section 21 notice 4 months later, in order to gain possession of the property after 6 months. We are in the process of trying to extract from our Lettings Agent whether they have issued him with any prescribed information at any points in his tenancy. (If not, it seems we will not have a leg to stand on in court!). I understand we'd have to return his deposit and start proceedings again with a new Section 21 notice? Is this right?
My main question , however, relates to the fact that he is now 2 months in arrears with his rent. Can we issue a Section 8 notice simultaneously? Is a Section 8 notice also invalidated if the prescribed information was not issued correctly? Or are we able to proceed down this route even whilst we are waiting for the hearing, and would the result of the hearing have any bearing on us taking this route? Many thanks.
 
#2
Hi Serena

Firstly in respect of the section 21 notice - if the deposit has not been protected correctly it is likely that the Judge will set aside the possession order. This means that you would have to start the process again by serving a new section 21 notice after the deposit issues have been resolved.

In terms of the section 8 notice, you can proceed down this route. If the prescribed information was not served it will not prevent you getting possession of the property, however the tenant can enter a counter-claim for the prescribed information not being served.

I hope this helps
 
#3
Hi Rebecca... thanks for your feedback.

Re the section 21, if the order is set aside on these grounds, how would we be expected to resolve the deposit issues before re-serving the section 21? Would we have to return the deposit to him and then serve the section 21... Or protect it after the hearing, issue him with the correct prescribed information, and then re-issue the section 21 notice?

In terms of the section 8 notice, I'm not clear on what you are saying will happen here. Are you saying we would regain the property without any issue? What would the tenant's counter claim be? Would he be claiming compensation?

I'm not sure how long it takes to regain possession with a section 8 notice? Would we be wise to kick off with the section 8 notice now, see what happens at the hearing, resolve the deposit issues, then with us being 3 weeks down the line with a section 8 notice perhaps not bother re-serving the section 21 at all?

What happens if he pays up his rent in the meantime once the section 8 notice has been processed?

Many thanks for your help.
 

Jeffrey Shaw

Member
Staff member
#4
Having served a Section 21 notice on our tenant back in February...We now understand from our solicitor that a Section 21 notice becomes invalidated if the deposit was not re-protected, and the prescribed information re-issued, with every new tenancy agreement, or when a tenancy moves from a shorthold to a periodic tenancy.
Yes- as Rebecca says.
The problem is a recent Court case which held each part of the letting to be so separate that a protectable deposit needs repeated reprotection: not just on a re-grant ("Replacement Tenancy") but also on any statutory periodic continuation tenancy.
 

Jeffrey Shaw

Member
Staff member
#5
In terms of the section 8 notice, I'm not clear on what you are saying will happen here. Are you saying we would regain the property without any issue?

What happens if he pays up his rent in the meantime once the section 8 notice has been processed?
Section 8 depends on various grounds (mostly fault-based) listed in Schedule 2 to the Housing Act 1988.
Grounds 1-8 are mandatory. If you as L can prove the ground(s) on which your Notice rests, the Court has to make an immediate binding Possession Order in your favour.
Grounds 9-17 are discretionary. Even if you prove the ground(s) on which your Notice rests, the Court does not have to make an immediate binding Possession Order in your favour. It will decide if possession would be reasonable in the circumstances.
 
#6
Hi Serena

The only way to resolve the deposit issue is to return the deposit to the tenant. You could protect it now and serve the prescribed information, but if you do you can not serve a section 21 notice. If you were to return the deposit to the tenant it is classed as there being no deposit and you can serve a section 21 notice.

In terms of section 8 - you need 2 months rent arrears at the date you serve the notice and the date you go to court. If the tenant entered a defence that the deposit had not been protected and the Judge orders compensation (which can be between 1-3 times the amount of the deposit) the Judge could offset this against the rent arrears and you will not get the possession order if there are less than 2 months arrears. This should not be the case but I have known this issue arise at court.

In terms of timescales - your section 8 notice must give the tenant at least 14 days notice of your intention to issue court proceedings - once this date has expired you can then issue court proceedings, but you don't need to do this straight away - the way forward as you suggest would be to serve the section 8 now, see what happens at the appeal hearing and take it from there.