Section 21 followed by a Section 8 - is it worth it?

[Rhiga]

Hi

I issued a Section 21 giving my tenant over 3 months notice because I need the house back for family reasons and felt that I would be as fair as possible to the tenant given that he has usually paid the rent on time and I haven't had that much difficulty from him.

However, since giving the S.21 I have been unable to contact him to arrange a gas safety check which is now overdue. He then failed to pay his rent and has ignored all attempts to contact him. He remains at the property because his dogs are guarding the front door with vicious integrity!

Anyway, I suspect he will continue not paying rent next month making it 2 months with no rent and still with another 2 months (- 1 day) to go before the section 21 takes affect.

I believe that if he does not pay next month's rent (due on 30th March) I have grounds to issue the Section 8. But are there benefits in doing this?

For information:

- Tenant works and is not in receipt of housing benefit
- It is an AST
- Deposit in government backed scheme

I would be extremely grateful if someone can assist with the advantages and disadvantages of issuing these notices. Thank you for listening.

Regards

[monkeysee]

The benefits are that you can go to court sooner (14 days after the notice is served), and that you can get a money order for the rent arrears at the same time.

The disadvantage is essentially that the tenant can defend a Section 8 claim which drags out the process and can be expensive, if, for example they make claims of disrepair and you have to get expert reports etc. If the tenant pays down the arrears to under 2 months by the day of the hearing it isn't mandatory for the court to grant possession either.

I'd issue him the Section 8, mainly to make it clear that you wont let him get away with not paying, but not start possession proceedings based on it, use the Section 21.

If you use the 21 you have to pursue a separate claim for the rent arrears as you cant get a money order at the same time. On the bright side though the tenant can't defend against it, save for technical reasons like wrong dates, failure to protect deposit etc.

[Rhiga]

monkeysee,

Fantastic answer, thank you very much for that advice. A further question comes immediately to mind. Is it possible to issue a Section 8, start proceedings then if he defends the Section 8 proceedings (based on paying to just under 2 months or disrepair (there isn't any but it may drag out the case)) to also proceed under the Section 21?

Once again, many thanks.

Rhiga

[monkeysee]

You can start a claim and then discontinue it, but one of two things can happen:

1. You will be liable for the defendants cost up to the date of discontinuance.
2. If the defendant has counterclaimed the claim will proceed on that basis alone.

So all in all it's better not to. Also, though it usually doesn't happen, bear in mind that the tenant may counterclaim for disrepair whether there is any or not.

Section 8's are quite unpopular because of the possibility of counterclaims, paying down of rent arrears etc, Section 21 is usually the preferred route unless the LL incurs significant further loss or disadvantage by not using S8.

In reality I'd venture to guess most S8's go through without too much trouble, but if you end up on the receiving end of a savvy tenant it can turn into a nightmare. S21 is more certain.

[mariner]

I do not think you can have 2 possession claims running concurrently.

You say you served s21 3 months ago (during fixed or periodic term)? If it is valid (deposit protected & PI provided within 30 days of receipt), you can pursue Court repo om expiry of s21 or Fixed Term, whichever is the later date.
s21 should give you possession after min 14 days max 42. You can also ask Judge to apply cost of hearing to T debt.
s21 is surest chance of success. IMO

[Rhiga]

Many thanks for your help. I think I have enough detail to make an informed decision.

[thesaint]

Has the fixed term of the tenancy expired? If not, does your tenancy agreement allow you to start proceedings to bring it to an end using Sec 8 of the 1988 housing act?

[Rhiga]

Yes, the fixed term has expired. The decision I have to make is whether to kick the process off early, kill 2 birds with 1 stone by repossessing the property and chasing for return of the money but risk delaying tactics through a defence (section 8) OR guarantee repossession but wait a good deal longer (7 weeks) and be forced to enter a further legal action to recover the money (Section 21).

But thanks for your interest.

[monkeysee]

If you're lucky, receiving a S8 which allows you to take him to court after 14 days will scare him into paying - he won't know whether you will or won't act on it, the natural assumption, I would think, would be that you will.... atm I'd guess he is thinking to himself that he still has 2 months to find a new place and can just slip away quietly into the night. Having that timeframe reduced to 14 days should come as a bit of a shock.

Might not happen, hope for the best and all that though

[sunnyp]

This is what I think you should do ofcourse others may differ. Gain possession via the section 21, serve the section 8 anyway it may jolt the T into paying, if not start a MCOL againt outstanding rent(at the two month outstanding pointie 14 days after the second missed payment) if the T is lazy he may not defend the MCOL claim you then get a default Judgement in 3-4 weeks that you can enforce at you own time.

[Rhiga]

Monkeysee and sunnyp, many thanks. I will issue the section 8 when he inevitably will not pay next month's rent and then probably suffer until the end of May before getting the house back or start the laborious repossession route.

[Berlingogirl]

Yes, it's a long drawnout process isn't it? FWIW I went to court with a S8 against a T who was in arrears and working. He didn't turn up. I told the judge I thought he'd left the property but had been seen walking up the path. He'd left his keys but that didn't mean he'd not had another set cut. I asked for immediate possession, rent arrears, costs, interest, and litigant in person fees. I got the lot. Now I'll just have to get an attachment of earnings.

Hope it all goes as well for you.

[Rhiga]

Harassing the Tenant - really?

I have served Section 21 on my tenant giving him a too generous 3 months notice (I'll never do that again). Since serving S21 he has decided in his wisdom not to pay me rent. He has also refused to answer a letter or messages to ask him for a convenient time to allow my contractor into the premises to carry out a gas service check. The gas safety certificate is now out of date. I have written to the tenant to say that unless he allows my contractor in to the premises I will have to tell HSE and/or Transco which may lead to the gas being switched off.

Now, to my (clearly illogical) mind suggests that I am being sensible and probably responsible in being concerned at the safety of my tenant (and his neighbours) but I have been warned by my agent not contact HSE or Transco because this could leave me open to harassment charges. The reason the harassment charges concern me is that I intend to serve a Section 8 notice on this tenant once he fails to pay for a second month (+14 days).

Any help would be appreciated.

Thanks for reading.

[monkeysee]

If you were to disconnect essential services, like gas, electricity, water etc, then that is potentially harassment and could be construed as an attempt to drive him out of the property (illegal eviction).

If a government body, HSE, for example, order that the services be disconnected then if that is because of his actions (not allowing you to get GSC) then that is not harassment.

Similarly, serving a legal notice (Sec 8), by post, is not harassment, if people feel harassed by getting mail they can tape up the letterbox If you sent one a day that might be different, but sending one is just fine.



Re the GSC, best thing to do is write to him a couple of times asking to make an appointment for Gas Safety Check, keep copies then you have a paper trail if he tries to claim there isn't one because of your negligence. If he wont let you then you could try asking the council tenancy relations officer to have a word with him, might work, might not. The ultimate step would be to get a court injunction requiring him to allow you access, but that will be expensive and time consuming.

[thesaint]

How many times has he prevented the gas engineer in?
Do you have paperwork to back it up?