Using a Section 8 Notice as a means of seeking possession of residential property let on an assured or assured shorthold tenancy is commonly used by landlords, particularly where tenants fall in rent arrears. This is a process that many landlords and agents will be familiar with in terms of drafting and serving the relevant Section 8 Notice, and should be straightforward enough. Despite this, the potential for error is great, and can be fatal to a claim for possession.

This was recently confirmed by the Birmingham County Court in the case of Kassam v Gill and another [2018]. Our aim with this Legal Update is to highlight the importance of ensuring that you have served a valid Section 8 Notice, given the potential consequences in terms of delay and costs.

Background

Section 8 of the Housing Act 1988 (“the Act”) requires a landlord seeking possession on one or more of the Grounds for possession set out in Schedule 2 to the Act to serve a notice in the prescribed form specifying, amongst other things, the Ground(s) being relied upon.

The prescribed form of Section 8 Notice is set out in the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 (as amended), paragraph 3 of which requires:

“Give the full text (as set out in the Housing Act 1988 as amended) of each ground which is being relied on. Continue on a separate sheet if necessary”.

Ground 8

In the case of Kassam v Gill [2018], the landlords sought possession under Ground 8. This is a common Ground for possession where rent is in excess of 2 months arrears (or 8 weeks for a weekly tenancy), as it gives the landlord a mandatory right to possession, meaning that the Court does not need to be satisfied that it is reasonable for an order for possession to be made.

Ground 8 as set out in Schedule 2 to the Act reads as follows :-

‘Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and at the date of the hearing—

(a) if rent is payable weekly or fortnightly, at least [eight weeks’] rent is unpaid;

(b) if rent is payable monthly, at least [two months’] rent is unpaid;

(c) if rent is payable quarterly, at least one quarter’s rent is more than three months in arrears; and

(d) if rent is payable yearly, at least three months’ rent is more than three months in arrears; and for the purpose of this ground “rent” means rent lawfully due from the tenant.’

Defects in the Notice

The Section 8 Notice served on behalf of the landlords failed to include the full text of Ground 8. The notice omitted both the wording “and for the purpose of this ground “rent” means rent lawfully due from the tenant” and the reference in Ground 8 to arrears being unpaid “at the date of the hearing” (as well as at the date of the notice).

Previous case law has established that it is not strictly necessary for the exact wording of the Grounds to be specified in the Section 8 Notice, so long as the wording used conveys the same meaning and sense to the tenant as the wording of the Ground used in the Act.

In this case, however, the Court was not satisfied that the wording used in the landlords’ Section 8 Notice did such, and the omissions rendered the Section 8 Notice invalid.

Luckily for the landlords, discretionary Grounds 10 and 11 had also been included in the Section 8 Notice (as is common in cases of rent arrears). This meant that the defective Section 8 Notice was not fatal to the claim for possession, as it is possible in some instances for the Court to still consider a possession claim on discretionary Grounds where the Section 8 Notice is defective or invalid.

Whilst the landlords did have another bite of the cherry, the claim on discretionary Grounds was adjourned to a later date, resulting in further delays and costs to what would have been a lengthy and costly process already. Even then, it is by no means guaranteed that the landlords would ultimately recover possession, as under Grounds 10 and 11 (unlike Ground 8) the Court must be satisfied that it is reasonable for an order for possession to be made on those discretionary Grounds.

Conclusion

The decision in this case could be viewed as pedantic or overly strict, but it should not be taken lightly.

Despite earlier cases which have permitted alternative wording which does not mirror the exact wording of the Act, it is always advisable to include the exact wording of the Grounds as per Schedule 2 in your Section 8 Notice, to avoid any later challenge. Irrespective of whether such a challenge would ultimately succeed, it will be a costly process with an uncertain outcome. 

We are, as always, more than happy to advise on and review any Section 8 Notices for you or your landlord clients. Should you have any questions in relation to this Legal Update or require our assistance generally, then please do not hesitate to contact us. 

Should you have any questions in relation to the above, then please do not hesitate to contact Kevin Lever on Kevin.Lever@kdllaw.com or 01435 897 297. 

Disclaimer

This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole. 

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