What to do if you have been served with a notice seeking possession (section 8 notice)
Section 8 Notice
If your landlord serves you with a section 8 notice, it means that they are seeking to repossess the property. They must give you a reason for doing this. For example, this could be because you are in rent arrears, have caused a nuisance to neighbours or damaged the property. This reason is referred to as the ‘ground for possession’. There are seventeen grounds for possession for assured tenancies in England and Wales.
The court must accept your landlord’s grounds for possession are made out before it will order you to leave the property. A section 8 notice might be served in conjunction with a section 21 notice (as to which, see the separate guidance produced by the A2J Clinic).
The section 8 notice should be given to you in writing using the standard ‘Form 3’ (which can be found on the government website) or in a letter with the same information that is required in Form 3. To be valid, the section 8 notice must state what grounds for possession your landlord is trying to evict you on and an explanation of why they are using those ground(s). You should therefore be able to find a ground number and explanation on your section 8 notice; if not, then the notice is not valid.
The notice is also not valid if it does not include: your name, the property address, the grounds for possession, and the date the notice ends. However, if your landlord has not given correct notice, they can still ask the court to order you to leave the property.
If your landlord’s grounds are numbered 1-8
Grounds 1-8 are known as ‘mandatory’ grounds for possession, which means that if your landlord can prove these grounds are made out, the court must order you to leave the property.
If your landlord’s grounds are numbered 9-17
Grounds 9-17 are known as ‘discretionary’ grounds. This means that your landlord will have to prove that the grounds for possession are made out and be satisfied that it is reasonable that you should leave the property. If the court is not satisfied that the grounds for possession are made out or that it would be reasonable to order you to leave the property, the could can decide not to do so.
If your landlord has used 2 or more grounds
The court only needs to accept one ground to order you to leave the property , not all.
If your landlord seeks to rely on both mandatory and discretionary grounds for possession, the court will always look at mandatory grounds first. If your landlord fails to prove any mandatory grounds for possession, the court will then consider the discretionary grounds to decide whether you must leave the property.
How much notice will you get?
The amount of notice you receive depends on what grounds for possession your landlord has used. You do not have to leave immediately upon receiving a section 8 notice, you will usually have 14 days.
During the Coronavirus pandemic, the notice period for any eviction notice has been temporarily extended; if your landlord serves an eviction notice on or after 26th March 2020, the notice period must be at least 3 months.
If you leave your home before the end date of the section 8 notice, you could risk being considered as ‘intentionally homeless’, which could make it difficult to get help from your local council. It is therefore important to consider whether you might have good reasons to remain in the property and defend the notice in court and you should look at all your available options and seek advice before leaving the property.
If you do not leave the property
If you have not left the property before the date of your section 8 notice, your landlord must start a ‘possession claim’ at court to make you leave the property, as landlords cannot evict you without a court order. Your landlord cannot start this process until after the date of your section 8 notice and they must start their possession claim within 12 months of this date.
Due to the Coronavirus pandemic, the government has temporarily changed the law on evictions. Landlords now cannot take court action to evict tenants until at least 23rd August 2020. However, if your landlord obtained a court order before 27th March 2020 and arranged for someone to enforce the order (for example, a bailiff or High Court enforcement officer), then you might have to leave the property.
You might be able to defend the possession claim and challenge the eviction. You should seek advice about your specific circumstances but defences to the claim can include: the landlord getting the facts wrong; it not being reasonable that you should leave the property; or the section 8 notice being invalid. You might want to communicate with your landlord about the reasons why you should not leave the property if you feel able to, as your landlord might decide to allow you to stay in the property. Note that if you do not leave the property and your landlord asks the court to order you to leave, you may have to pay the landlord’s legal costs if you do not win.
If your landlord starts a ‘possession claim’ at the court to make you leave the property, the court will send you a ‘defence form’ (also referred to as ‘Form N11’, which you can find on the government website) that you can complete to voice your reasons why you should remain in the property in defence of your landlord’s possession claim. You should complete this with as much detail as possible, as the court will consider the information in your defence form when deciding whether you should be able to remain in the property. It is important that you mention in your defence form if you think that your landlord has discriminated against you, the reason you are being evicted is linked to a disability, and if you are being evicted as a result of previously complaining about discrimination.
You could use the defence form to explain how you are putting things right, for example, if you have paid some rent arrears, repaired damage, or removed a pet from the property.
Even if the court orders you to leave, it can postpone the date by which you need to do so. You should therefore use the defence form to explain to the court why they should do this for you. You must have a very good reason for this, such as serious illness, young children, or a disability. The usual amount of time the court will give you to leave the property is two weeks but it can delay the eviction date up to six weeks.
You can also use this form to request to pay court costs over a longer period if needed, for example by monthly payments.
You must send the form back to the court within 14 days (the court address will be on the form). If you miss this deadline, it is important that you still send the form to the court as soon as possible. You should keep a personal copy of your form so that you have your own record of what information you have given.
The court will also send you papers explaining why your landlord is trying to make you vacate the property and any evidence that your landlord wants the court to consider. You will also be given a court hearing date and the court will decide at this hearing whether you must leave the property or not.
If your landlord starts a possession claim, you might have to pay your landlord’s legal costs. You could be entitled to legal aid if you are on benefits or a low income. If you do qualify for legal aid support, then you might get exemption from paying your landlord’s costs if you cannot afford them.
After returning your completed defence form, the court will communicate a possession hearing date to you. It is important to attend this if you can, as it is your opportunity to tell the court why you should be able to remain in the property. You should still endeavour to attend even if you have not returned your defence form. If you sent your defence form but do not attend, the court could ignore this and rely on the evidence of the landlord – attendance is important.
You should bring all documents from the court and your landlord to the possession hearing, this includes: your tenancy agreement, bank statements/pay slips to show how much you can afford to pay if you are required to pay costs, and any correspondence from your GP if you are in rent arrears as a result of an illness or disability. You could also bring other evidence that you might feel is relevant to your case such as evidence of a new job to show your ability to pay rent arrears.
You can bring a family member or friend to the possession hearing with you for support but, unless they are legally qualified, they might not be able to speak on your behalf.
You are entitled to be represented by a lawyer in court. You might be entitled to legal aid, where the Legal Aid Agency will pay some or all of your legal fees, or there is sometimes, but not always, free legal advice available at court on the day of the hearing.
Receiving a court decision
The court will tell you whether you must vacate the property; this decision will usually be communicated to you on the day of the hearing. However, the court might decide to continue the hearing on another day if they decide that they need more information and evidence.
If you do not attend the hearing, the court will send you a letter telling you whether (and if so, when) you must leave the property. You can also phone the court or your landlord to find out the court’s decision.
If you could not attend the court hearing, you might be able to ask the court to consider your case again.
The court decides you can stay in the property
If the court accepts your defence, they could: let you remain in the property if you meet certain conditions (e.g. paying rent arrears) or dismiss your landlords case (you can stay without meeting any conditions).
The court may decide to make a suspended possession order, which means that it will allow you to stay in the property subject to certain conditions (usually compliance with your tenancy obligations or repayment of arrears). The court will specify a period for which the possession order is suspended and if, within that period, you breach the conditions, then the possession order will be ‘activated’ and the landlord can ask the court to evict you immediately. The court can only suspend a possession order if your landlord used the discretionary grounds 9-17.
You can apply to change the order if later on you are unable to keep to its terms, such as the amount of monthly repayments.
You might have to pay court costs; the court will communicate this to you.
The court decides you must leave the property
If the court decides you must leave, the court will make an ‘outright possession order’ where the court gives you notice (usually 14 days) to leave the property. You are entitled to appeal against this order, but you must prove that mistakes were made in the possession hearing.
You might be able to ‘suspend’ a possession order (prevent it) if your situation changes. For example, you might get a new job or start getting benefits which would enable you to pay arrears. Your ability to do this depends on what grounds your landlord used.
If you do not leave the property against the court decision
If you do not leave the property before the date on the possession order, your landlord would need to get an eviction warrant which asks the court to send enforcement officers (also known as bailiffs) to make you leave.
You are usually informed by bailiffs/enforcement officers of when they will come to evict you. However, if your landlord asks the High Court to send bailiffs, then you might not be told that they will be attending.