Understanding Section 21 & Section 8 Notices

Since the White Paper in 2019 presented the abolishment of Section 21, the word "Eviction" has been confused with the “service of the notice. This misunderstanding of the legal processes has caused a great deal of confusion which has been repeated ad infinitum by the trade press, national press, news outlets and even the Government. Whilst this may seem a trivial comment given that the previous and current Government have ‘peddled’ the idea that every Section 21 notice served by a landlord equates to eviction when in fact the service of the Section 21 is a preliminary step in the legal process of ending a tenancy. it is not, in itself, an eviction.

Understanding Section 21 and Section 8 Notices

The Section 21 Notice (Form 6A): Introduced under the Housing Act 1988 to regain vacant possession of a property at the end of a fixed term or during a periodic tenancy, it became referred to as "no-fault" (See the Deregulation Act 2015) process because the Landlord does not need to provide a reason for seeking possession. Serving a Section 21 notice of a Section 21 notice does not mean the tenant is evicted. It merely informs the tenant that the Landlord intends to seek possession of the property but only if the tenant does not vacate.

The Section 8 notice (Form 3) is used when the Landlord seeks possession due to a breach of the tenancy agreement, such as non-payment of rent or anti-social behaviour or has another reason to rely on one of the 17 Grounds listed in Schedule 2 of the Housing Act 1988. This is an evidence based notice and again does not mean that the matter will be referred to the courts.

The Legal Process After Serving a Notice

If the tenant fails to vacate the property following the expiration of a Section 21 or Section 8 notice, the Landlord can commence court proceedings. This involves:

1. Issuing a Possession Claim:

   • For a Section 21 notice, the Landlord files a claim for possession using the Accelerated PossessionProceedings

   • For a Section 8 notice, the Landlord files a standard claim, detailing the grounds for possession.

2. Court Hearing (if applicable):

   • Under Section 8, a hearing will typically take place where the Landlord must prove the necessary evidence is in place for a court to grant possession. This is particularly important where the landlord is reliant on the Mandatory Grounds (1 - 8)

   • Under Section 21, if Accelerated Possession Proceedings are used, there is generally no hearing unless the tenant puts forward a defence.

3. The Possession Order:

   • If the court finds in favour of the Landlord, a possession order will be granted, requiring the tenant to vacate by a specified date.

   • For Section 21, this is usually a 14-day order, but it can be extended to 42 days if the tenant can demonstrate exceptional hardship.

Eviction: Warrant of Possession and Bailiffs

If the tenant remains in the property after the possession order expires, the Landlord must apply for a Warrant of Possession to enforce the court order. The process involves:

1. Applying for a Warrant: The Landlord applies to the court for a warrant of possession, which allows bailiffs to evict the tenant.

2. Bailiff Attendance: A county Court Bailiff or High Court Enforcement Officer (HCEO) will carry out the eviction.Bailiffs will give notice of the eviction date to the tenant, typically providing at least 14 days’ notice.

3. Execution of Eviction: On the appointed day, the bailiff attends the property to remove the tenant if they have not already left voluntarily. Only a bailiff or HCEO can legally carry out the eviction; the Landlord is prohibited from attempting to remove the tenant themselves.

Key Differences Between Serving a Notice and Eviction

The Service of a Notice (whether Section 21 or Section 8) is the initial step in a legal process and does not, by itself, terminate the tenancy or remove the tenant, whereas, Eviction is the physical removal of the tenant, which occurs after court proceedings and the execution of a warrant by a bailiff. Local Authorities, however, do understand the difference as they often tell tenants who have been served notice to ‘stay put’ until they are evicted.

Why the Confusion?

It is likely that the confusion stems from the misconception that a Section 21 or Section 8 notice automatically leads to eviction. However: serving a notice is only the start of a multi-step process that must follow strict legal procedures.

Eviction requires a court order and enforcement through a bailiff or HCEO. The process can be lengthy, especially if tenants contest the notice or court proceedings are delayed. Furthermore, the terms "eviction" and "possession" are often used interchangeably in everyday language, adding to the misunderstanding.

However, in law, they are distinct stages of the same process.

The Renters’ Reform Bill, set to significantly impact the current legal framework, proposes to abolish Section 21 notices and the associated accelerated possession proceedings. This reform marks a major shift in how Landlords will regain possession of their properties in England. The proposed changes aim to strengthen tenant security, but they will also create new challenges for Landlords seeking possession. The following will apply:-

Removal of Section 21 Notices

1. End of 'No-Fault' Evictions: The abolition of Section 21 will mean that Landlords will no longer have the option to end tenancies without providing a specific reason (Ground). As such, Landlords will need to rely on Section 8 Grounds for possession, which requires providing evidence of tenant fault or other legally defined reasons (e.g., rent arrears, anti-social behaviour, or the Landlord's intention to sell or occupy the property).

2. Impact on Landlords: Landlords will face a more onerous process to regain possession, as they will have to justify their claims using grounds under Section 8. The burden of proof on Landlords is likely to increase, potentially leading to more disputes and extended court proceedings.

Abolition of Accelerated Possession Proceedings

1. Current Accelerated Possession Process: Accelerated possession under Section 21 allows Landlords to obtain possession orders without a court hearing, provided all procedural requirements are met. It is quicker and less costly than the standard possession process.

2. Changes Under the Renters' Reform Bill: With the removal of Section 21, the accelerated possession will no longer be available. All possession claims will likely need to proceed under the standard route, which involves a court hearing and more extensive procedural requirements.

3. Impact on Landlords: The removal of accelerated proceedings will lengthen the process of regaining possession, increase costs and possible delays for Landlords.

The Proposed Reforms to Section 8

To balance the removal of Section 21, the government proposes to amend Section 8 and streamline court processes:

Strengthening of Section 8 Grounds: New grounds are proposed to allow Landlords to regain possession more easily , such as selling the property or moving back in and notice periods will be increased or decreased may be reduced in cases such as severe rent arrears or anti-social behaviour.

The Renters’ Reform Bill, particularly the removal of Section 21 and accelerated possession proceedings, will fundamentally change the dynamic between Landlords and tenants.

Ultimately, while the abolition of Section 21 seeks to address tenant insecurity, the success of these reforms will depend heavily on whether the proposed improvements to the court system effectively mitigate the delays and challenges Landlords currently face under Section 8 proceedings. Balancing the rights of both tenants and Landlords will remain a critical focus as the Renters' Reform Bill progresses.