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Saturday, November 19, 2011

Section 8 or 21 notice?

I was contacted recently by a landlord who wanted to gain possession of their buy-to-let and was trying to work out whether to use a section 8 or section 21 notice.

She was unclear which one to go for and wanted my view.

Well it is the section 21 notice every time for me.

"Why she said...why is the section 21 better?"

It turns out that one of the reasons she wanted to remove her tenant was that they had been smoking in her property which was contrary to the tenancy agreement.

I explained I would go for a section 21 notice every time because providing the court is satisfied that it has been correctly served; then they are required to grant the landlord possession.

Section 8 on the other hand is fault based which means that the landlord has to prove to the court that one of the 17 grounds for possession has been met. Not easy if you are trying to establish that your tenant was smoking. How would you establish this in a court of law in front of a sceptical judge?

The main thing with a section 21 notice is to make sure you use the right one and serve it correctly.

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1 comment:

Anonymous said...

Someone correct me if I'm wrong (and assuming you're talking about a housing act tenancy) but a Section 8 Notice must be used if the tenancy is still within the fixed term or the first 6 months of a periodic tenancy (it's this 6 months that is the "Assured" part of an AST) - therefore the "Assurance" can only taken away by a court order assuming the landlord proves one of 17 grounds for possession. However, once the 6 months (or the fixed term) is over the landlord does not need the backing of a court and does not need to give a reason - this would be in accordance with Section 21 of the 1988 Housing Act - hence Section 21 Notice. A S21 notice can still be served during the fixed period but would have to indicate that the notice ends of when the fixed period was due to end anyway... so it's not so much a question of choice, rather the circumstances dictating the type of notice. I think that's all correct in principle - consult a legal professional if in doubt!