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Tuesday, August 16, 2011

Section 8 Notice

Landlords using a section 8 notice are attempting to gain possession by going down a fault based possession route as a posed to non fault based possession through using a section 21 notice. This means that they have to demonstrate to the courts satisfaction that one or more of the grounds for possession have been met.

I've recently had an enquiry from one of our landlords questioning why we only specify grounds 8 & 10 on our section 8 notice and don't include ground 11 which refers to tenants being persistently late with their rental payments. Well, the main reason is the burden of proof. Establishing that the tenant is 2 months or more behind on their rent under a mandatory ground 8 along with the ancillary ground 10 is far easier than trying to prove that the tenant is frequently late paying.

Most liberal minded judges are unlikely to find in a landlords favour and award possession even if the landlord was able to establish this. This is why our section 8 notice sticks to using ground 8 and 10.

I'm interested to hear other landlords views on this.

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Anonymous said...

If the Judge was 'liberal minded' they would find in favour of the Landlord all the time rather than the lying schemeing tenant

Paul Barrett said...

Proving persistent lateness with rent payments is easy.
You just need to have copies of receipts given to tenant or bank statements showing rent payments.
You should use as many grounds as apply as they build up a weight of evidence so that the judge has a mandatory grounds; but may also be assisted in his/her determination by the discretionary grounds circumstances
All the relevant grounds would need to be cited on the N5 possession paperwork etc.
You should ensure therefore that ALL circumstances that are relevant should be cited.

The Editor said...

Hi Paul thanks for your comments. I'd be interested to know how many times you have been successful and whether your possession was granted on the mandatory grounds or the discretionary one related to repeated lateness in payment. I'm just wondering what is considered late.. a week, a month, one day and persistent. Once, twice, four times in a year? Seems to me that without any set standards it pretty much depends on the humour of the Judge on the day. Not a sure fire winner unless your tenant is a rioter!

Paul Barrett said...

Yes I totally agree with you that your contention to cite rent in arrears by 2 months is a ground that a judge HAS to grant possession for.
However that is no reason to not mention to the judge the other circumstances which may come under discretionary grounds.
You should really advise ALL relevant details to the judge to give him a holistic overview of ALL relevant circumstances.
These will be viewed at later stages of possession and eviction and may well assist those circumstances.
Bizarrely I have just looked at my possession order and I note the judge gave me possession on discretionary grounds only even though the mandatory ground for non- payment of rent should I would have thought been the principal reason for granting possession.
That is why I think all grounds should be cited; because as you noted judges do things funny ways sometimes.

Paul Barrett said...

I would also add that is 1s my 2nd eviction citing non-payment of rent but also citing discretionary grounds.
Just as a matter of interest but I wonder if you could give your informed views in a blog about the useless county court system which is causing landlords to lose their property and possible other detrimental financial consequences; possibly such as bankrupty; losing ones residential home; theft of ones property from the rented property and trashing it by the tenant.
The only reason I am hanging on to the flat with which I am evicting a tenant is the old BOM&D!!
Since 1.3.11 when 1st rent payment was missed until the tenant is evicted on 8.9.11; that is how long it has taken.
I have followed ALL due process with no delays in submitting paperwork and in addition to the £6650.00 losses incurred to date there might be additional losses when I am able to access the flat; if she's wrecked the place.
This means I won't be able to rent it out with all the problems that will cause.
I don't think the BOM&D is a bottomless pit!!?
In fact so serious is the problem bearing in mind not all tenants will qualify for RGI; even though the rent can be afforded; that landlords face mass repossessions as tenants STOP paying rent as economic circumstances worsen.
Who is then going to pay the mortgage?; whilst the county court system grinds away slowly with the victim landlord left to try and resource mortgage payments from WHAT!?
My cited discretionary grounds were 4 of them.

charlie71 said...

Does anyone have any advice on serving a section 8 notice when the rent is paid, but there have been other breaches of the tenancy agreement? (subletting and antisocial behaviour towards residents of other properties in the building) The tenant only moved in last week and I am getting constantly bombarded with emails and phone calls from the neighbours already...