We will always advise you about which eviction action to take after looking at your specific case. In many cases, we will serve both Section 8 and Section 21 notices at Step 1, and then act with the one that’s going to work best as circumstances change later. Here are some key factors we look at.
If the tenant has done nothing wrong, you can only use Section 21.
If the tenant is persistently late with rent, owes more than two months’ rent, or has breached the tenancy in another way, you can use Section 8. However, sometimes even if the tenant has breached the tenancy, you might still be better off using Section 21, because possession is mandatory and it’s very difficult for the tenant to cause any delay in proceedings.
The tenant cannot defend against this action. As long as the application is valid, possession must be granted, and the tenant will be ordered to leave. Generally, possession is smoother in this paper-based process, but there are a few cases where a court hearing will be required. We will advise you if this is likely. Even though rent arrears are not covered by this process you can, at any time within six years, make a separate claim for debt. If there are rent arrears, but the tenant does not have any assets or employment and there is no guarantor, we often recommend the Section 21 eviction process – you may never the recover the rent arrears, but you get the property back without a court hearing.
If there are large rent arrears and the tenant has the means to pay, or there is a guarantor, Section 8 is the obvious choice. It can save you from serious financial loss. As long as we are confident that we can prove the tenant’s breach of tenancy under at least one of the mandatory grounds, the court is compelled to grant our landlord possession. If the landlord hasn’t fully complied with the deposit scheme legislation, Section 8 is easier to use than Section 21. It’s also useful to use Section 8 if there is still a long period until the end of the tenancy.
If you have not fully complied with the deposit scheme legislation you cannot use Section 21 at all unless you take some remedial steps first.
Under Section 8, when the court gives you a money order against the tenant, you still have to act on the order to recover the money from the tenant, and often you will have no success or it will be too costly to pursue.
Under Section 8 the tenant can put in a defence. Even if the tenant lies, their defence can force an adjournment and delay proceedings. However, in all our years we have only ever seen two Section 8 cases go beyond a second hearing.
Under Section 8, if you lose you may have the tenant’s legal costs awarded against you.
