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Section 8 Tenant Eviction Notice and Coronavirus Act 2020

by Tarjinder Rayat — Posted on 26 May, 2020

Section 8 notice and the temporary procedure to evict a tenant who has stopped paying rent in light of the Coronavirus Act 2020 

The Section 8 Notice And The Effect Of COVID-19 For Landlords

To proceed with tenant eviction using this route, a tenant must firstly fall in rent arrears for more than 2 months to rely on the mandatory ground 8 (known as section 8) or you may wish to rely on discretionary grounds 10 and 11. It is more difficult to obtain a possession order using discretionary grounds as the Judge will need to consider whether it is reasonable in the circumstances to make an order for possession against the tenant. Tenants will usually claim significant hardship when being evicted under discretionary grounds.

After the tenant falls into rent arrears of at least 2 months, the Landlord is entitled to serve the tenant with a section 8 notice. The Landlord will need to produce evidence of how the rent became due and how the tenant fell into rent arrears by producing a “Rent Schedule” which must outline the date rent became due, the amount of rent payable, the amount of rent paid and the date paid, and finally the running balance outstanding at the date of serving the notice.

With a section 8 notice all that must be proved is that there are at least 2 months of rent arrears outstanding at the date of service of the notice and at the date of the possession hearing. Therefore, section 8 notices are very different to section 21 notices.

 

The practical differences between section 8 and section 21 notices when evicting a tenant

 

You will see from our previous article on section 21 evictions that there are many requirements which Landlords must meet with before they can initiate serving section 21 notices. Although using a section 8 notice is a more contentious route, if the Landlord can prove that there are 2 months of rent arrears then an outright possession order ought to be directed by a Judge. Although Judges generally have a wide discretion, Judges do not tend to exercise their discretion when ground 8 is met by the Landlord.

With section 21 notices, if the Landlord is non-compliant under the Housing Act 2004 then possession proceedings can be extremely costly and Landlords can face counterclaims by tenants for thousands of pounds in compensation and damages.

Section 8 notice must be served for a period of 14 days and is valid for 12 months from the date of issue. Possession proceedings must therefore be initiated before the expiry of 12 months but not before the 14 days have ended.

Section 21 notice must be served for a period of 2 months and is valid for 6 months from the date of issue. Possession proceedings must therefore be initiated before the expiry of 6 months rather than 12 months and cannot commence before the 2 months have ended.

 

Please note COVID-19 regulations are now in force with effect from 26 March 2020 and there are slight changes to the rules in particular changes to the time lines and procedures. Please see below for further information on COVID-19 changes.

 

If you are a Landlord and wish to evict your tenants using a section 21 notice then please read our section 21 notice blog and download our free guide by joining our newsletter.

 

Grounds for Possession under the Housing Act 1988

 

The following are the most common grounds for Landlords to rely on under Schedule 2 of the Housing Act 1988:

Mandatory ground – 8

At the date of the notice and at the date of hearing –

(a)if rent is payable weekly or fortnightly, at least eight weeks’ rent is unpaid;

(b)if rent is payable monthly, at least two months’ rent is unpaid;

(c)if rent is payable quarterly, at least one quarter’s rent is more than three months in
arrears; and

(d)if rent is payable yearly, at least three months’ rent is more than three months in arrears;

 

Discretionary ground – 10

 

At the date of the notice and at the date of hearing – some rent is unlawfully outstanding

 

Discretionary ground – 11

 

At the date of the notice and at the date of hearing – the tenant has persistently delayed paying rent which has lawfully become due

 

Tenants Right to defence including disrepair

When serving a section 8 notice to a troublesome tenant, we usually instruct process servers to personally hand deliver the section 8 notice. The reason for this is because when we act on behalf of Landlord, we wish to protect them from all aspects including a possible defence arising by the tenant who claims that they did not receive the section 8 notice. If tenants raise such a defence, we can help Landlords to draft a Witness Statement or other evidence showing that an independent process server, served the section 8 notice by hand. This is solid evidence and it is extremely difficult for the tenant to rebut this evidence. We also protect our clients by serving the notice 1st class royal mail and also signed for recorded delivery service.

 

Other most common defences which tenants raise against a claim for possession are; Harassment and Disrepair. When tenants raise such defences, they usually claim that ground 8 rent arrears are not made out as their claim for compensation exceeds the value of rent arears or reduces the arrears below the 2 months mark which would then not entitle the Landlord to a mandatory possession order and would then force the Judge to consider the claim against the discretionary grounds.

 

If tenants end up raising a defence such as those explained above with evidence then it depends on the Judge of the day as to what order or directions are passed. We have seen cases where Judges have still upheld the possession order in cases where tenants raise a defence as such without proper evidence and on the hand we have also seen cases where Judges do not pass a possession order straight away but rather adjourn the hearing with directions for the Landlord and tenants to exchange evidence such as Witness Statements.

 

It is very unpredictable as to what a Judge will order on the day of the possession hearing if a defence is filed by the tenant and so it is very important to have good legal representation on the day. Tenants will have their last opportunity to raise a defence in person on the day of the hearing. Factors such as the value of the rent arrears and the evidence in support of the defence matters the most and Judges will consider such factors when deciding to pass possession orders under ground 8 if a defence is filed.

 

If the tenant does not attend the possession hearing or does not file a defence then they will have their last opportunity to do so by attending the hearing in person. If there are no grounds to a defence then Judges will pass an outright mandatory possession order for the tenant to vacate the property on or before 14 days.

 

We have the experience in advising you on how to counter a tenant’s defence of disrepair. This could include arranging a property condition report prepared by a surveyor and carefully drafting detailed witness statements on your behalf that will hold up to scrutiny as well as strongly challenging any evidence adduced by your tenant. This is where we as solicitors excel over non- lawyer tenant eviction companies.

 

Section 8 Possession Claim

To commence eviction proceedings, a notice must be properly served onto the tenant. Relying on grounds 8, 10 and 11 the notice will expire in 2 calendar weeks, on expiry of the notice, a possession claim will be issued with the Court that has the jurisdiction to issue the claim. This is usually the nearest Court to the location of the property in question. After the claim is issued with the Court, the Landlord will receive a notice of issue and a notice of hearing.

 

If you instruct us to act on your behalf then we are able to issue the possession claim online for you. This is a much quicker way of starting the claim compared to filing the claim on paper which is the more traditional method. If we issue the claim for you online, then you will receive a Court hearing date on the same day. If you issue the claim on paper then you will usually wait for 1-2 weeks to receive the hearing date.

 

On the day of the hearing it is important to have evidence of more than 2 months of rent arrears, by producing an up to date rent schedule showing the arrears on the day of the hearing. Once a possession order is granted, the Judge will allow the tenant to vacate the property on or before the expiry of 14 days from the date of the hearing.

 

The tenant should vacate the property after the expiry of 14 days. However, tenants do not always leave the property after 14 days. In this instance, Landlords will need to make an application to enforce the possession order by applying for a warrant of possession of land and appointing County Court bailiffs or High Court Sheriffs to evict the tenants using reasonable force.

 

Recovery of Rent Arrears

Tenants often do not always pay up the rent arrears by the time given in the Court order. Landlords will need to make a separate money claim to enforce the order and obtain a County Court Judgement (CCJ). This is the first step in enforcing a money order against your tenants. Once Landlords have a CCJ against their tenant, they can look at other ways in enforcing the CCJ, for example by applying for a earnings attachment order (if tenant is employed) or by applying for a charging order (if tenants have land on their name) or may even be able to appoint County Court or High Court Sheriffs to seize the tenant’s goods to the value of the debt.

 

Court Enforcement for possession of the property

Landlords can choose High Court Enforcement Officers or County Court Bailiffs to evict the tenant. Using High Court Enforcement Officers will evict the tenants within 7 days from the date of appointment. Alternatively, County Court Bailiffs is a less costly option but can take over 4-6 weeks to obtain an appointment. For more information read more on our express eviction page.

 

Court Enforcement for payment of rent arrears

As mentioned above, depending on the route Landlords wish to take, there are different ways in enforcing the payment of rent arrears. Some of these can be the following:

 

  • Send County Court or High Court bailiffs/sheriffs to collect payment
  • Apply for earnings attachment order and get money deducted from the tenant’s wages
  • Freeze assets or money in a bank account
  • Charge the tenant’s land or property

 

The effect of The Coronavirus Act 2020 and the new changes

The global covid-19 pandemic has affected everyone including both Landlords and tenants. This has brought about some changes in the procedure when evicting tenants.

 

What are the changes?

The Government has passed The Coronavirus Act 2020 and announced temporary measures with the objective to prevent tenants from being made homeless during this pandemic and also to prevent Landlords being left with unmanageable debts such as being unable to pay for their mortgage due to lack of rent income.

The Coronavirus Act 2020 came into effect on 26 March 2020 and the changes are to include the following:

  • Temporary suspension of evictions from social or private rented accommodation;
  • No new possession proceedings through applications to the Court to start for at least 3 months from effect of the new regulations (26 March 2020)
  • Landlords will also be protected as 3-month mortgage payment holidays are extended to Residential and Buy-to-Let mortgages

Tenants are still expected and obliged to pay their rent on time. However, the intention behind the government’s proposals and new guidance is to enable both Landlords and tenants to reach an agreement to prevent evicting the tenants due to non-payment of rent. This would mean that Landlords and tenants are encouraged to communicate with each other and try to meet in the middle and agree to a temporary reduced rent payment plan for the next few months. This will maintain a good relationship between Landlords and tenants.

 

However, in some cases Landlords and tenants cannot reach agreement. In this case, we can help you by serving the necessary notices to evict the tenants and initiating the claim for possession.

 

Existing and previous possession proceedings

The government has announced the following:

  • Courts are remaining open in line with government guidance, so if a hearing is already in place you should wait for further notification from the Court. Some courts are now trialling and offering remote hearings; and some hearings are being adjourned and proceedings are being stayed until further notice.
  • Block listing of possession claims has been suspended during this time;
  • All enforcement of writs/warrants of possession of land are temporarily suspended but will resume when the government considers it appropriate. The suspension period will not count towards date of expirations of writs/warrants; and
  • Bailiffs instructed to carry out evictions are being stood down.

New possession notices/proceedings

If tenants have failed to pay rent consistently and have now fallen into arrears and are not willing to communicate with Landlords to reach an agreement as to a reduced rent payment plan then Landlords must take action.

 

Landlords can still serve notices to tenants in the form of section 8 and section 21 notices. These notices must be for a period of at least 3 months rather than 2 weeks (section 8) and 2 months (section 21). If a Landlord is terminating a tenant who has a periodical tenancy then the notice must end on the last day before the tenancy is renewed.

 

A Landlord will not be able to evict a tenant without a possession order if the tenant enjoys exclusive possession of a residential property and holds a residential tenancy. Therefore, Landlords must follow the procedure before they can evict their tenants.

 

FAQs for Landlords on overcoming typical Procedural problems

 

I have not protected my tenant’s deposit within 30 days of receipt in an authorised scheme and not served my tenant with the prescribed information, can I still evict my tenant?

 

Yes you can!

 

Failure to protect your tenant’s deposit does not deter you from seeking a possession order to evict your tenant and we can advise how. However, you should be mindful of the fact that this can be a ground for counterclaim by your tenant against you. What this means is that if your tenant makes a counterclaim due to non-protection of the deposit then you as the Landlord can face paying a statutory penalty of in between 1 to 3 times the value of the deposit together with the return of the deposit. The statutory penalty can be offset against the rent arrears as well, however you must ensure you still have at least 2 months of rent arrears outstanding in order to rely on ground 8.

 

We can negotiate on your behalf to avoid going to court as well as advise you on legal arguments to limit the penalty to zero or just 1 time the value of the deposit.

 

I have a gas supply in my property but failed to serve my tenants with a gas safety certificate, “how to rent guide” and/or an Energy Performance Certificate before my tenants moved into my property. Can I still evict my tenants?

 

Yes you can!

 

Although, you have not complied with your obligations under the Housing Act 1988/2004, we can help you can evict your tenants where amongst other factors you can show that your tenants have failed to pay rent for at least 2 months under ground 8.

 

 

Why Use our section 8 tenant eviction service?

Firstly, unlike some of our unregulated tenant eviction competitors, we are Solicitors regulated by the Solicitors Regulation Authority (SRA) with adequate insurance and complaint procedures to protect all our clients.  You will receive the best service when instructing us to take over the hassle of evicting your tenants and have dealt with hundreds of evictions over the years. Our team is very friendly and approachable. Not only do we have years of experience in evicting tenants but we know how to deal with troublesome tenants and we will ensure you are protected and will be able to evict your tenants in a time efficient and cost-effective way possible.

 

We are able to issue the possession claim online for you which means you will be paying the reduced Court fees of £325.00 rather than £355.00. You will also be able to plan your time accordingly well in advance of the possession hearing date, this is because we will obtain the date of your hearing on the same day of issuing your claim online. Our prices are very reasonable compared to other firms and if your matter is straightforward then we will provide you with a reduced fixed fee. We will provide you with thorough advice and keep you updated on your case throughout the proceedings.

 

How Starck Uberoi can Help

Starck Uberoi have a dedicated team of Experts that specialise in Landlord and Tenant matters. For more information please visit our Landlord & Tenant page or alternatively contact our Landlord and Tenants specialist solicitors on 02088406640 or at solicitor@starckuberoi.co.uk . We are based in Ealing, BrentfordCanterbury and London Belgravia. Our Brentford office is located close to Brentford County Court. For appointments at our Belgravia and Canterbury offices please contact 0207 824 5118 or 01227 693 053 respectively.

 

Further reading

About Tarjinder Rayat

Tarjinder is a qualified Solicitor and heads the landlord and tenant department. She has a strong local reputation for dealing with landlord & tenant matters including possession, unlawful evictions and disrepair claims as well as conducting general litigation matters.