When evicting a tenant you need to serve the correct eviction notice first.
You need to get this notice right otherwise you can lose your case. Or, like the landlords in a recent case, you may be involved in expensive defended proceedings.
About section 8 notices
As you are probably aware, to evict a tenant (an assured or assured shorthold tenant that is) on the basis of rent arrears, you need to serve first a notice. The rules about the notice are set out in section 8 of the Housing Act 1988 – which is why its called a section 8 notice.
This notice is in a prescribed form – this means that the wording of the notice is in a standard format and if you change any of this wording the notice will be invalid.
This is actually good as it means that so long as you use this form and don’t change it, your tenant can’t argue with it (so far as its wording is concerned anyway – they may have other grounds for defence).
The notice also has to set out the wording of the ground which you intend to use to base your claim for possession on at court.
About the rent arrears grounds
The grounds are all set out in schedule 2 of the Housing Act 1988. There are three which relate to rent arrears, one mandatory ground (ground 8) and two discretionary grounds.
If you want to evict under the mandatory ground, ground 8, you need to cite it in your notice (HA188 s8(5).
This is the only ground where this is an absolute requirement. All the other grounds can be used with leave of the court, even if they have not been mentioned in your s8 notice – apart from ground 8.
However it is important to be able to get possession under a mandatory ground as then the Judge cannot delay the date for possession for more than 6 weeks. Which they can do with orders granted under a discretionary ground.
Masih v Yousef [2014]
In this Court of Appeal case the landlord’s notice was correct – apart from the wording of ground 8 set out in the notice. The wording in the notice said the “rent owed” whereas the wording in the statute is “rent lawfully due”.
In this case the landlord was lucky – the Court of Appeal held that the notice was valid.
The reason given was that it only needed to convey the substance of the statutory ground and rent could not be owed unless it was lawfully due.
However although the landlord won his case, this was only after an expensive Court of Appeal claim. If only they had cited the act correctly in the first place, the case would have been won a long time ago and the tenant evicted.
About defended eviction claims
Defended cases and decisions like these are interesting for lawyers as they help us understand and clarify the law.
However they are not good for the actual parties. Court cases are expensive and stressful.
In my experience if a landlord brings a claim against a tenant for possession it is because he wants that tenant to leave (or pay the rent). He is not interested in funding an intellectual exploration of the laws and rules in the eviction process.
As you can see from this case, even the slightest deviation from the standard wording can result in a contested eviction claim. Even if you ‘win’ you have actually lost as it has taken you so much longer to get your court order and in most cases the tenant will still be living at the property all that time.
So make sure that this does not happen to you by ensuring that your notice is 100% correct.
Landlords will find all the standard possession notices and guidance on completing them on my Landlord Law site. For more information >> click here.
Note – the reference to the case was obtained from the excellent Garden Court Chambers Housing Law Bulletin.
This is a classic example of what often goes on in court. You can have everything in place but lose a case on a seemingly (to a non-lawyer) trivial technicality.
Some judges are very flexible about technicalities and some wont allow it to go through if the Ts are crossed or the i’s dotted. Trouble is you cant pick your judge on the day.
A cautionary tale to get it spot on to avoid playing the possession action snakes and ladders which I see all too frequently
The s8 must be written in black ink – honest!!
Tessa it would be exceptional circumstances where a Court allowed a Landlord to rely in Court in a ground not actually stated in the notice in order to try and evict a little old lady tenant.
I am unaware of any case where this has ever been allowed but if you can quote one I’d be interested. Only if something was actually life threatening can I really imagine it happening.
My notices have always been typed / printed which is what I recommend. In black needless to say.
I am not personaly aware of any cases where the landlord has been allowed to add a new ground (as virtually all my s8 cases have been based on ground 8 as set out in the notice) but it is certainly something within the Judge’s powers under s8(2). However his discretion to do this for s8 grounds is specifically excluded under s8(5).
http://www.legislation.gov.uk/ukpga/1988/50/section/8
I suspect that a Judge would be particuarly reluctant to exercise these powers in a ‘little old lady’ case.
I just can’t see any way a Judge whose only way of assisting a tenant (as they are prone to do) would allow a claimant to add a ground on the day of a hearing though he might but then postpone to a later date