Section 21 Versus Section 8 Notices

Landlords seeking possession frequently have to decide between the merits of using a Section 21 notice or a Section 8 notice. Both have merits but which one should landlords use? 

Rebecca Brough of solicitors Fidler and Pepper discusses the differences between the two types of notices.  If you want to use the section 8 notice we have done a little blog on how to create a section 8 notice through the PM3.0 our free property management software.  The same set of instructions applies for the creation of a section 21 notice but obviously just click 'section 21 notice' instead.

Landlords getting possession by Rebecca Brough

There are two ways to get possession as laid out in Section 21 and Section 8 of the Housing Act 1988 but which one is the best?

Unfortunately this is not an easy answer and often needs to be considered on a case to case basis.  Below I have listed both types of Notice to assist you in making this decision.  In considering this I will assume that the only reasons you are using Section 8 is because of rent arrears.

If you require possession under Section 8 for anything other than rent arrears, you should seek legal advice.

Length of Notice

Section 21 - this must be at least 2 months and can not expire before the end of the fixed period of the tenancy.

Section 8 - the length of the Notice is 2 weeks.

Time for possession order 

If the Notice has expired but the tenant is still in the property you will need to issue Court proceedings and ask a Court for a possession order.

Section 21 - you do not need a Court hearing and it normally takes 6 weeks to receive your Possession Order.

Section 8 - you will need a Court hearing, this is usually 8 weeks after the Court have received the claim.

Getting the Possession Order

Section 21 - if you have given the correct notice, your tenant deposit is protected in a tenancy deposit scheme and your Section 21 Notice expires on the correct day, you will get a possession order.

Section 8 - if your tenant owed two months rent the date you issued your Section 8 Notice and on the date you go to Court, you will get a possession order.  If your tenant owes less than two months at any of these points you will only get a suspended possession order.

To summarise:-

Section 21 notice
Advantages

• No fault notice, if the paperwork is correct it can not be defended and possession will be granted. 
• You do not need to attend a Court hearing.

Disadvantages

• You have to wait at least two months for the notice to expire; the notice can not expire during the fixed period.  
• If you have not protected the tenancy deposit you can not use this Notice

Section 8 notice
Advantages

• The notice period is only two weeks; you also get a County Court Judgment for the arrears

Disadvantages

• If the tenant pays rent arrears leaving less than two months owing you can not get a possession order, this could even be the day before a Court hearing.
• You have to go to Court and the Court process takes a couple of weeks longer.
• The tenant can defend the claim on the grounds of disrepair of the property.

The purpose of this article is to give a brief summary of the two notices so you can see at a glance the differences. It may be that your individual circumstances may dictate which Notice you use.


To get more advice on gaining possession of your buy-to-let property email Rebecca at propertyhawk@fidler.co.uk or post a question in our Landlord Legal Forum.

Rebecca Brough – Fidler & Pepper

Landlord Fixed Price Possession Service