Knowing exactly how to gain possession of a rental property can be confusing. It is important to get it right to avoid any delays or unnecessary costs, the first stage is to serve a notice seeking possession. This gives the tenant the chance to leave the property of their own accord, or to resolve issues that have a risen.

If no breaches of the tenancy agreement have been made, a Section 21 notice is suitable; however, if there are any breaches then a Section 8 notice can be considered. Both options can be used in tandem to strengthen your claim, providing the relevant criteria are fulfilled.

Serving a Section 21 Notice

Section 21 notices are to be used when the tenant has not breached the tenancy agreement, but the landlord wants to gain possession of the property.

There are very specific criteria that must be met to serve a valid Section 21 notice:

1. At least 2 months’ notice for the tenant to leave must be provided. If the tenancy is still within the fixed term, this must be given after the first 4 months of the tenancy and must comply with a break clause or expire on or after the end of the fixed term. This means that if a tenancy has become periodic, a Section 21 can be served as the fixed term will have ended. It is also important to note that if the tenancy is a contractual periodic tenancy, the notice period must be at least as long as the rent intervals (quarterly, six monthly or annually).
2. A valid Energy Performance Certificate must be supplied to the tenant prior to serving the Section 21 notice.
3. If there is gas installation and supply in the property, a valid Gas Safety Certificate must have been provided to the tenant.
4. If the tenant paid a deposit when the tenancy began, this must have been protected in a Deposit Protection Scheme within 30 days of receiving the deposit and the tenant provided with the relevant prescribed information.
5. When the tenancy began, the tenant must have been issued the most recent How to Rent Guide.

It is also important to note that if there are renewal tenancies or the tenancy has continued periodically, the above documents must be re-issued. For example, an updated How to Rent Guide (if a new version has been released), or updated Gas Safety Checks and Energy Performance Certificates.

If all the above criteria have been met, then you are able to serve a Section 21 notice and if necessary, issue proceedings using the accelerated possession procedure.

To serve the notice, a no-fault possession 6A form needs to be completed and served to the tenant. This can be in multiple ways including by email, first class post, personal delivery, left at an address, recorded delivery or via a process server. It is important to know if any of these methods are clearly outlined as acceptable in the tenancy agreement. Furthermore, each method has varying dates of service that you need to be aware of. The most common and effective method is by first class post with proof of postage, which has a date of service of two working days.

Serving a Section 8 Notice

Section 8 notices are to be used when the tenant has breached terms of the tenancy agreement.

There are multiple grounds that can be relied on in a Section 8 notice. Some are mandatory grounds, which means that if made out, a judge must grant a possession order in a possession hearing. Other grounds are discretionary, which means that if made out, a judge has discretion to grant a possession order.

Both mandatory and discretionary grounds can be used in conjunction to strengthen your claim, for example, common grounds that are used together are grounds 8 (mandatory), 10 & 11 (discretionary) as they all relate to rent arrears and delayed payment of rent.

The other key difference between Section 21 and Section 8 notices is that Section 8 notices require only 2 weeks’ notice, as opposed to 2 months, and notice can be given at any time during a tenancy.

Furthermore, Section 8 notices do not have the same criteria as Section 21 notices. You do not have to serve Energy Performance Certificates, Gas Safety checks, deposit information or How to Rent Guides prior to serving a notice. You also do not have to return a deposit if it was paid.

To serve a Section 8 notice, form No. 3 – seeking possession of a property let on an assured tenancy, or an assured agricultural occupancy must be used.

The key steps to serving a valid Section 8 notice are:

1. Outline grounds being relied upon as they are specifically written in Schedule 2 of the Housing Act 1988.
2. Clearly explain why the grounds are being relied upon, referring to evidence. For example, if there are rent arrears, refer to the up-to-date amount and rent schedule.
3. Ensure all details entered on the form are correct, including landlord/tenant names and addresses – we often see minor errors in notices which can risk the validity of the notice and cause unnecessary delays.
4. enough time for service of the notice. It is good practice to give 2 weeks plus 3 days. For example, if a notice is dated 24/04/2023, state that the hearing will not take place sooner than 11/05/2023.

Section 8 notices can be served in the same ways as Section 21. Again, the most common and effective method is by first class post with proof of postage.

Once notices have expired

After the notice period of the Section 21 or Section 8 notice has expired, this can then progress to the next stage of gaining possession which means making a claim in court.

We would however always recommend that once notice is served that the tenant is communicated with to see if a resolution outside of court can be achieved.

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