Section 8 invalid - Possession Judgement

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    Section 8 invalid - Possession Judgement

    I have received the judgement for a possession notice which simply states that the Order is dismissed as the Section 8 I served is invalid as it should have been a Section 21.

    Background: The tenant moved in 1 May 2014. He was a family friend so we lowered the rent, no advance rent taken and no security deposit (he did not have the funds available). I know we were idiots and have learnt our lesson so no advice required on this front!

    He paid rent regularly for the first 6 months so the 6 months fixed term assured shorthold agreement was renewed 1/11/14. The rent was then late every month until he stopped paying in August 2015. He was in a periodic tenancy from 1 May 2015 as we did not renew the agreement. On 26 November 2015 we issued a Section 8 siting the rent arrears.

    We used Section 8 so that we could claim back the rent arrears if it got to court. I know now that we didn't need to do this and could have issued a Section 21 but does this make the Section 8 invalid? I have read that you can't use the Section 21 during the fixed term but haven't read anywhere at all that you can't use the Section 8 after the fixed term has ended? Is it really invalid? Can I appeal? Do I have to now serve a S21 and start the whole possession process again?

    We applied for the possession order in March 2016. The court lost the paperwork...twice! This has meant the whole process has taken over 8 months and all I get is a 'computer says no' answer from the Judge.

    Housing benefit covered his rent until they found out he was working. He hasn't paid rent since August 2016 (so 5 months in arrears by 1 Dec).

    We don't want to be landlords anymore, we just want to build an extension and sell the house. However, despite 12 months of trying to get him to leave, he's still there and I know he won't go as he has personal reasons for living in that street. He doesn't look after the place and has caused some damage internally and in the garden, which he denies. He has said the house is unsafe, which it most certainly isn't and even tried suing me for a fall!

    This has been an absolute nightmare and I know he is laughing at us.

    #2
    There are two quite different Notices Requiring Possession, depending whether you are seeking a possession order under s7 or s21. What did you serve?

    You say you 'received the judgment' - you mean you didn't attend the hearing - or did you apply under the Accelerated Procedure (which is not available for fault-based claims)?

    Comment


      #3
      It was under Section 8 not 7. This one: http://www.lawpack.co.uk/landlord-an...roduct2069.asp

      We weren't offered a hearing. Yes applied last March for accelerated because the housing benefit paid the rent arrears so at that time there were no arrears to claim.

      So section 8 and accelerated aren't compatible?!

      Comment


        #4
        Originally posted by Cuddfan View Post
        It was under Section 8 not 7. This one: http://www.lawpack.co.uk/landlord-an...roduct2069.asp

        We weren't offered a hearing. Yes applied last March for accelerated because the housing benefit paid the rent arrears so at that time there were no arrears to claim.

        So section 8 and accelerated aren't compatible?!
        No.

        https://www.gov.uk/evicting-tenants/...tion-8-notices

        The prescribed form (available via that link) is FREE too.

        Comment


          #5
          Thanks. Surely the court office should have mentioned that before it went to the judge (8 months later). That's not legal advice, it's administrative.

          As we weren't allowed to complete the normal possession order I assume the section 21 should have been issued in March?

          Comment


            #6
            Which section 8 grounds did you gave notice under, if there were no arrears at the time you made the claim?
            I am not a lawyer, nor am I licensed to provide any regulated advice. None of my posts should be treated as legal or financial advice.

            I do not answer questions through private messages which should be posted publicly on the forum.

            Comment


              #7
              Originally posted by Cuddfan View Post
              As we weren't allowed to complete the normal possession order I assume the section 21 should have been issued in March?
              What do you mean?

              No, the court won't protect you from yourself. The system doesn't lightly allow people to be evicted from their home: you need to get your claim right, or expect your claim to be dismissed. Either you need to do some serious homework, or take (and pay for) professional advice, really.

              Comment


                #8
                Sounds like you used the wrong procedure for the notice you issued.
                Any advice I give is my opinion and experience, I am as you also learning.

                Comment


                  #9
                  Originally posted by Cuddfan View Post
                  As we weren't allowed to complete the normal possession order I assume the section 21 should have been issued in March?
                  There are two s21 processes, standard and accelerated - the first allows you to claim for any arrears and costs and the former doesn't.
                  The accelerated process is available because the hearings are very simple - there's no defence other than an administrative or procedural error, or something that the landlord has failed to do in the past.

                  There isn't an accelerated s8 process, as the "accelerated" element doesn't really apply, there's almost always some thought and judgement required.

                  If the tenant wasn't in arrears, it's extremely unlikely the section 8 would have been successful.
                  When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                  Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                  Comment


                    #10
                    Originally posted by jpkeates View Post
                    There are two s21 processes, standard and accelerated - the first allows you to claim for any arrears and costs and the former doesn't.
                    You mean the latter, surely?

                    If the tenant wasn't in arrears, it's extremely unlikely the section 8 would have been successful.
                    That's an understatement. The form purchased by the OP was specifically one claiming Ground 8 arrears (and may or may not have been in the prescribed form - we haven't seen it). However, the OP should note that the requirement is for (probably) 2 months rent to have been outstanding at the date of the notice as well as at the date of the hearing, so the application would still have been bound to fail if there were not 2 months rent unpaid at the start, even if the standard (rather than accelerated) procedure had been chosen.

                    Comment


                      #11
                      Thanks for the explanations. Believe it or not I did research. There are three of us involved and between us we have 4 degrees and 3 masters! I work with regulations and government policy daily! Epic fail.
                      The tenant was 6 months in arrears when we submitted the possession claim. Then he wasn't (housing benefit paid it). Now he is again by 5 months.
                      So for our next move...pay for legal advice and start the whole thing again. Depressing.

                      Comment


                        #12
                        8, 10 and 11

                        Comment


                          #13
                          Originally posted by KTC View Post
                          Which section 8 grounds did you gave notice under, if there were no arrears at the time you made the claim?
                          8, 10 and 11. He was 6 months in arrears when process started. originally we submitted the normal possession order. The confusion is because the court lost our claim twice. In between the claim being sumitted first time and second the arrears was cleared by housing benefit so we switched from the normal possession to accelerated as we thought it would be quicker as no longer claiming rent arrears. They lost the claim again after that. The process took 8 months. He is now 5 months in arrears again and all definitely not pay a penny. Why should be bother when he can live there rent free.

                          Comment


                            #14
                            We always suggest serving s8, gs 8,10,11 and valid s21, but only proceed to Court with s21.
                            Your s8 prob failed because at time of hearing T was no longer owing 2 month rent. Contact HB Dept and get LHA paid direct to you, then serve valid s21.

                            Comment


                              #15
                              Originally posted by StuartH View Post
                              You mean the latter, surely?
                              I do - sorry!
                              When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                              Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

                              Comment

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