Invalid Section 8 Notice? What to do?

[AndyStart]

Hi there,

On June 3rd I issued a Section 8 notice to a tenant renting a room in a four bedroom HMO. The tenant is currently in 4 months rent arrears.

The tenant is receiving legal aid and their solicitor has filed a defence and counterclaim.

The main item in the defence is that the Section 8 is invalid as I (foolishly) did not make reference to the specific room the tenant rents on the Section 8 notice, I only put the property address.

The hearing has been set for October 4th.

My main question is; what is best way for me to proceed from here? (I'm assuming the Section 8 is indeed invalid, unless I hear a solid reason otherwise)

Also, what would be the implications of me serving a new valid Section 8 between now and the hearing? Would a new Section 8 supersede the last or would the court only look at the original Section 8 that was served?

Finally, if there is little hope for me with this hearing, what steps should I take now to gain possession of the room in the property?

Thanks in advance, any help and advice is much appreciated.


A couple of other points:
1: I have not instructed a solicitor and am a little reluctant to do so, if the significant likelihood is that the claim will be dismissed due to an invalid Section 8.
2: I did not provide the tenant with a copy of the gas safety certificate when they moved in back in May 2018

[AndrewDod]

Section 21 and a Moneyclaim online.

Gas.....

[jpkeates]

Also, what would be the implications of me serving a new valid Section 8 between now and the hearing? Would a new Section 8 supersede the last or would the court only look at the original Section 8 that was served?

The possession hearing will only look at the notice that was attached to the court documents.

You can attend and see if the judge is sympathetic to the defence.
I think they will be, but who knows.
You're asking for a tenant to be made homeless and courts aren't that sympathetic.

Serve a new notice now correcting the issues helpfully raised as a defence in this notice and escalate that either straight away or if the current process fails.

[AndyStart]

The possession hearing will only look at the notice that was attached to the court documents.

Thanks for your response jpkeates, much appreciated. Is there somewhere where this is set out in law? Is there somewhere I can go to loot at the rules about what judges/courts will and won't accept with regards to serving valid notices?

[leaseholder64]

Case law is only formed when a case goes to appeal. Different judges will have different ideas as to what to allow.,

It is unlikely that this situation would ever go to appeal, as it is quicker just to start over with the correct notice.

[jpkeates]

Thanks for your response jpkeates, much appreciated. Is there somewhere where this is set out in law? Is there somewhere I can go to look at the rules about what judges/courts will and won't accept with regards to serving valid notices?

As far as I know it's not set out in law.

It makes absolutely no sense that you would make a request for a possession order on one basis and then the court would consider a completely different claim when the court hearing took place.

The court has reviewed the matter and decided there might be a valid case, the tenant has received a copy of the court papers and been given to opportunity to offer a defence and/or take legal advice on the issue, and why should be allowed to turn up on the day and make all of that a waste of time?

[AndyStart]

It makes absolutely no sense that you would make a request for a possession order on one basis and then the court would consider a completely different claim when the court hearing took place.

Thanks again jpkeates

The basis of a re-issued Section 8 would not change, i.e. Grounds 8, 10 & 11, just an addition to the wording of the address.

Other forum responses have suggested to re-issue the Section 8 now and if the court doesn't allow it, no harm done. I have no idea as I've never had to issue a notice to a tenant before. I'm just trying to determine my best cause of action.

I'd like to avoid the case being dismissed and having to pay for the defendants' solicitor fees, but it looks like that may well happen, because I foolishly didn't write the word "room" on the Section 8.

One other point I don't know if relevant or not, the AST doesn't refer to a specific room either. So both AST and Section 8 just give the property address. But, as the defence rightly points out, it is clear the defendant only rents a room as the other rooms in the property have tenants in also.

Would you say that the likelihood is that the case will be dismissed for invalid Section 8?

[jpkeates]

I don't know if the hearing will fail or not.
You've paid for it, and will get the costs anyway, so you might as well go and try.

Does the tenancy agreement confirm that the tenant rents a room or what?
That might be a more significant problem - the paperwork for this isn't helpful at all.

Your argument is that the address on the notice is the same as all other post sent to the tenant (presuming the tenant doesn't have their own mail slot or the mail is put into different places) and they know what they actually rent.

To be honest, it could go either way, but 4 month's rent is a lot.
You could also point out that any delay will simply cause more and more debt which the tenant is going to spend years repaying.

[alice123]

if the tenant rents a room in a HMO is there a specific room number ? is this noted on the tenancy agreement ? Im not familiar with houses in HMo but assuming that they have scrutinised the paperwork -

[JK0]

Alice raises a good point: Is the room self contained? Doesn't tenant have to leave it to cook or bathe?

Then seems to me you did the correct thing in putting the section 8 down for the whole house. Changing things now looks like you agree you made a mistake.

[KTC]

How much is the estimated cost of instructing a solicitor to review the case and appear for the hearing? How much would the cost of losing the current case in defence cost (if awarded), further arrears etc. be? Only you can decide which one is more cost efficient given the risk involved.

Your job isn't to believe the other side defence just because they have a lawyer that filed it. They're correctly and naturally going to argue any points that may go in your favour, your job is to counter their argument and give your own to hopefully get the court to rule in your favour.

A suitably qualified lawyer will know and/or be able to do some research into past case laws to see if there are any suitable cases that may help you in arguments.

If all else fails and the court rule against the notice that had been served, asked the court to dispense with the requirement of the notice per s8(1)(b) of the Housing Act 1988.

[AndyStart]

Thanks jpkeates, alice123 and JK0 for your thoughts - all useful.

So, the AST states:

"In connection with the following property: [address]. We rent the above property to you individually..." - i.e. no mention of the room.

The Section 8 states:

"Your landlord intends to apply to the court for an order requiring you to give up possession of: [address]" - i.e. no mention of the room.


The defence states:

"The Defendant occupies a bedroom in the Property and shares communal space, namely the kitchen bathroom and lounge, The Defendant has never occupied the Property as a whole, and the Claimant has let the Property to other tenants."

...and then goes on to state:

"It is denied that the Claimant is entitled to possession of the Property upon the basis of unpaid rent or the relief sought or any relief. The Defendant occupies a room within the Property, and so the defendant cannot give up possession of the entire Property, because he does not occupy it. The Claimant has failed to properly plead possession of the room which the Defendant occupies, and so is not entitled to possession."


jpkeates; the paperwork, as you say, is not helpful. Clearly what I should have done is state clearly on both the AST and the subsequent Section 8 exactly which room the defendant occupies. But I've become complacent over the years as I've rented rooms to over 500 people in the last 15 years and always had really good relationships with my tenants and never had to refer to an AST once in all that time. Lesson learnt!

The tenant stopped paying rent in April last year due becoming unemployed due to poor mental health. I've tried to help in every way I can, but haven't received any rent from them since. Now it seems, because of my foolishness in not writing "room 1" on the paperwork, I will have to pay their solicitor fees and start the possession process again?

[AndyStart]

How much is the estimated cost of instructing a solicitor to review the case and appear for the hearing? How much would the cost of losing the current case in defence cost (if awarded), further arrears etc. be? Only you can decide which one is more cost efficient given the risk involved.

If all else fails and the court rule against the notice that had been served, asked the court to dispense with the requirement of the notice per s8(1)(b) of the Housing Act 1988.

Thanks KTC.

I was quoted £480 by Landlord Action just to read the case and £240 an hour after that for advice and representation. Assuming the defendants solicitor charges around the same rate, I'd estimate the costs could be between £2,000 and £3,000. If the Section 8 is factually invalid, I'm reluctant to spend any further money on a solicitor, just for the case to be dismissed.

[JK0]

Ah, come on. If you'd specified the room in the notice, they'd be arguing that the guy could stay on by locking himself in the bathroom.

[KTC]

Winning a court case is as much about having the law and facts on your side as it is about how well you argue the case in court. If you're have such a defeatist attitude (beyond merely being cautious) or is convinced your notice wasn't valid, you may as well discontinue the case now to save on any more cost.