A comprehensive landlord’s guide to gaining possession via Section 21 or Section 8
Cut through the jargon and find out how to end a tenancy and get your property back, legally. With our handy, easy to follow landlord’s guide.
As a landlord, your number one priority is likely to be having a great tenant living in your property. Paying rent to you on time and in full.
But there may be times when you want or need to get your property back. That could be for a personal reason – you might be planning to sell or move either yourself or a family member into it. On the other hand, it could be because you’re unhappy with the tenant and/or they’ve broken the terms of their tenancy agreement.
Whatever the reason, if you want your tenant to leave, there are specific legal steps you have to follow to end a tenancy.
If we manage your property, we’ll take care of the whole process for you. But if you self-manage, you’ll need to take the time to understand your obligations. And what you can and can’t do, in order to stay on the right side of the law.
To help you, we’ve put together this handy overview of the different situations in which you might want to end a tenancy, beginning with:
This is the paperwork you’ll need to issue your tenant with, in order to bring the tenancy to an end. The type of notice you should use depends on your reasons for ending the tenancy:
Section 21 notice:
This is essentially a ‘no fault’ eviction. Simply give the tenant a minimum of two months’ notice that you want them to vacate the property – you’re not obliged to give them a reason. You can find the correct form (6A) on the government website.
It’s important to note that there are certain circumstances in which you can’t serve a Section 21 notice, including:
- If you haven’t protected the tenant’s deposit
- If you haven’t given them the latest version of the government’s ‘How to rent’ guide
- If you haven’t provided them with copies of the property’s EPC and current gas safety certificate.
You can find a full list on GOV.UK but, in general, as long as you’re meeting all your obligations as a landlord, you should be able to end the tenancy with a Section 21.
Section 8 notice:
A Section 8 (form 3) is normally used if the tenant has breached their tenancy agreement. This differs from a Section 21 in two key ways:
1). You must state the ground(s) on which you’re evicting the tenant, and
2). The notice period will vary, depending on the grounds, but it’s generally between 2 weeks and 2 months. In the most serious cases, for example if there has been illegal activity, no notice is required.
As well as issuing the right paperwork – and you must make sure you use the most up-to-date version of the section notice – you’ve got to be able to prove that the notice was served correctly. To cover yourself, it’s a good idea to have it hand-delivered to the property. Or sent via a ‘signed for’ postal service. In addition, email a copy to your tenant requesting a ‘read receipt’.
Ending a tenancy within an initial fixed term
A fixed term is the initial minimum period you and your tenant agree that the tenancy should last for. There are two key things to note here:
1). You can’t ask a tenant to leave within a fixed term unless there’s a ‘break clause’. So, if the agreement was signed for an initial 12 months with a 6-month break clause, the earliest you could serve notice would be month 4. Requiring the tenant to leave at the end of month 6. If there is no break clause included in the tenancy agreement, then you’re committed to the full year’s tenancy.
2). The tenancy doesn’t simply expire at the end of the fixed term. If you want the tenant to leave, you have to give them notice. So if the initial term was 12 months, you’d have to serve them with a Section 21 notice at the start of month 10.
If you don’t serve notice, you can either draw up a new tenancy agreement for a second year, or simply leave the contract as it is and let it become ‘periodical’. That’s effectively a rolling contract, where you can give the tenant two months’ notice at any time.
Note – If the tenant has breached their agreement, that’s a different matter. You should be able to give them notice via a Section 8 at any point – see below.
If your tenant wants to move out
While you have to give your tenant at least 2 months’ notice to end their tenancy, this is not usually the case for your tenant.
Unless the tenancy agreement states otherwise, it will usually end automatically if the tenant moves out by the end of a fixed term – they don’t necessarily have to give any notice.
Once a tenancy has become periodic – i.e. any initial fixed term has expired – your tenant only has to give you one month’s notice.
Importantly, the tenant is committed to pay rent for the full initial fixed term. So, if they signed a 12-month tenancy without a break clause, they can’t simply give a month’s notice during that first year.
If a tenant is unhappy in the property or their circumstances have changed and they need to move, most landlords will negotiate with them to end the tenancy early. So, for example, if they needed to leave right away, you may hold them to paying the next 2 months’ rent, or you could ask them to pay a reduced rent until you find a new tenant.
Note: As soon as the property is re-let and a new tenancy begins, the previous tenant is no longer liable for rent.
Ending a tenancy when the tenant hasn’t done anything wrong
In reality, this hardly ever happens. When a landlord has a good tenant in situ and things are ticking along nicely, they’re usually keen to hold on to them for as long as possible.
But if you did want to get your property back, you’d simply need to follow the standard Section 21 process by using form 6A and giving your tenant at least 2 months’ notice.
If you are asking your tenant to leave through no fault of their own, it’s important to be sensitive to the fact that they might be upset or annoyed at having to move out. We’d suggest you give them as much notice as possible and ask if there’s anything you can do to help them find a new home or move their things.
Getting your property back when a tenant has breached their contract
In this case, you can use either a Section 8 or a Section 21.
If you want to get your property back as soon as possible and the type of breach means you only have to give 2 weeks’ notice, you may want to serve a Section 8. Section 8’s are most commonly used for serious rent arrears.
However, if there is conflict – and you do occasionally simply get a ‘bad’ tenant – they may refuse to leave. In this case you’ll have to go down the full court eviction route, which could take time and be costly.
On the other hand, as long as you’re not claiming rent arrears, you could issue a Section 21. Although this means you’ll have to give your tenant a minimum of 2 months’ notice. If your tenant then refuses to leave, you may be able to get your property back more quickly than if you’d served a Section 8 notice.
What if my tenant won’t leave?
It’s important to say that the majority of tenancies end perfectly well. Either the tenant gives notice themselves or the landlord serves notice and the tenant leaves within the given time frame.
However, on the rare occasion that a tenant digs their heels in, it can get tricky (and potentially expensive for landlords).
Often, when a tenant refuses to leave by the required date, they’re also in rent arrears. So it’s obviously important from a financial perspective for you to regain possession of the property. To allow you to let it to a tenant that will pay the rent!
If you served a Section 21:
You can apply to the court via the ‘accelerated procedure’ to get a possession order to evict the tenant. There’s no court hearing – it’s simply a case of the court processing the paperwork. So it’s generally a quicker and less costly process, with less hassle than a full standard possession procedure.
If you served a Section 8 (The only option if you’re claiming rent arrears at the same time as requesting possession):
You’ll have to go down the standard route, which involves a court hearing to decide whether a possession order should be granted. Needless to say, that can be costly, and it may take several months for your case to make its way through the court system.
Where possible we’d suggest you try to reach an agreement with your tenant in order to avoid having to go to court. The Property Redress Scheme has a mediation service for landlords and tenants, which is well worth trying. And if you have a letting agent, they should be able to help you try to reach a resolution.
Navigating An Eviction
One of the most important things to understand is that evictions have to be handled in a specific legal way. If you get any of the paperwork wrong, it can invalidate the entire eviction. Which means you’ll have to start the whole process again from scratch.
If we manage your rental, we’ll handle everything on your behalf. But if you’re a self-managing landlord, we’d suggest you engage an eviction specialist, such as Landlord Action. Although this will mean an additional cost for you, it’s generally money well spent for peace of mind that everything is being done properly. And you’ll get your property back as quickly as possible.
To find out more about our fully managed service. Or if you have any specific questions about the best way to end your current tenancy, we’re always here to help. Call us directly on 01244 316 338 or get in touch via out contact form and we’ll get right back to you!