Does a Section 8 notice to quit end a tenancy?

by Readers Question

7:42 AM, 10th October 2016
About 2 years ago

Does a Section 8 notice to quit end a tenancy?

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Does a Section 8 notice to quit end a tenancy?

I served a Section 8 notice on an AST fixed-term tenant who was behind with their rent. Twelve days later the tenant moved with 2/3 of their things, leaving 1/3 which they were going to move the next day. They kept the keys and didn’t attempt a handover. They’ve repeatedly said they’ll move their property and not to touch it.question

The lawyer who handled it recently got a possession order within the term of the tenancy and was of the opinion that they remain tenants until that date. However the tenants counterclaimed and a second lawyer advises that their tenancy agreement ended 14 days after the S8 notice was served. From then to the date of possession we can claim damages for storage charges, but not rent.

Despite the tenant’s unfulfilled promises to sign a Deed of Surrender to avoid court action we are liable for our failure to obtain possession in a timely fashion.

Is this correct?

John



Comments

Neil Patterson

7:48 AM, 10th October 2016
About 2 years ago

Hi John,

Is one of the lawyers saying you can't end the tenancy during the fixed term under section 8, because I think he is confusing it with section 21 which would be worrying?

From .Gov >> https://www.gov.uk/guidance/gaining-possession-of-a-privately-rented-property-let-on-an-assured-shorthold-tenancy

How do I get my property back?

There are 2 main routes private landlords can take to regain possession of their property under the Housing Act 1988:

Section 21 gives a landlord an automatic right of possession without having to give any grounds (reasons) once the fixed term has expired
Section 8 allows a landlord to seek possession using grounds 2, 8, 10 to 15 or 17 listed in Schedule 2 to the Act

These include rent arrears and anti-social behaviour.

In all cases you must give your tenant written notice, usually at least 2 months, of your intention to regain possession.
Which route should I use?

You cannot use Section 21 to gain possession of your property during the fixed term. You can serve a Section 21 notice on your tenant during that time, providing the date you state you require possession is not before the end of the fixed term.

If your tenant paid a deposit, you cannot use Section 21 unless the deposit has been protected in accordance with the tenancy deposit schemes. See the guide to tenancy deposit protection.

You can seek possession at any time under Section 8 but if you are seeking possession during the fixed term, you can only use Section 8 if the tenancy makes provision for the tenancy to be ended on the ground for which you are seeking possession.
Seeking possession under section 8
How much notice must I give my tenant?

The notice you must give if you are using Section 8 varies from 2 weeks to 2 months depending on the ground you are using.
Do I need to use a special form to give notice to my tenant?

If you are using Section 8 the notice you give must be on a special form entitled Form 3: Notice seeking possession of a property let on an assured tenancy or an assured agricultural occupancy.
What do I do if my tenant refuses to leave on the date specified in the notice?

You will need to apply to the courts for a ‘possession order’.
How can I speed up the process?

You can use the possession claim online service if you are seeking possession of the property together with any rent arrears. The service allows you to access court forms online to make, issue, view and progress a possession claim electronically.
What do I do if my tenant refuses to leave by the date given in the court order?

You must apply to the courts for a warrant of possession and the court will arrange for a bailiff to evict the tenant. You will need to use the Request for warrant of possession of land (N325) form.

Romain Garcin

8:43 AM, 10th October 2016
About 2 years ago

Neither s.21 nor s.8 notices are notices to quit and they have no effect on the tenancy.
Moreover the tenancy doe not end with the possession order either but only when the possession order is executed by bailiffs or when a surrender is agreed.
Both aspects are explicitly stated in the Housing Act.

KATHY MILLER

8:57 AM, 10th October 2016
About 2 years ago

Even when the bailiffs arrive you are often left with a house full of crap which you then have to give notice for them to collect. I think 7 days is acceptable , they rarely collect so then you have to dispose of it at your cost with little chance of getting any money back.

This is on top of the 8 plus weeks you have to wait for the bailiff to arrive.

Luke P

10:16 AM, 10th October 2016
About 2 years ago

Extending on what Romain said, regardless of whether they have actually left or not, the tenancy is not properly ended until the possession order is exercised.

If the bailiffs are working many weeks behind, convert you PO to a High Court Writ and have HCEOs enforce it. You will get a certificate with an exact date when the property was properly returned to you.

Unlikely to happen, but some tenants have been known to bait landlords and their ignorance by appearing to have completely abandoned the property, knowing you're likely to go in and clear up in readiness for your next tenant, only to pounce and sue you for re-entry and not properly ending with them.

White Collar

11:23 AM, 10th October 2016
About 2 years ago

The Joys of using a lawyer (I'm a lawyer)

A section 8 does not end a tenancy. The tenancy only ends when a possession order is made or the property is given up by the tenants.

When a possession order is given, if the tenants do not move out of the property, the order should also state that the tenants pay a daily rate of rent until they give up the property. If the Court order does not mention this then the lawyer who obtained the same has been negligent.

I've never heard of anyone claiming storage charges. You can only claim such if they are contractually included within the tenancy agreement.

You are not liable because of failing to obtain possession in a timely fashion.

I do not agree with Romain's advice above. Having attended over 75 Court hearings dealing with Landlord/Tenant as an advocate, Romain's advice above is incorrect.

Sharon Betton

14:51 PM, 10th October 2016
About 2 years ago

Reply to the comment left by "Luke P" at "10/10/2016 - 10:16":

My understanding is that there is a rental liability until the date the court orders possession. Once that date is passed, as he is there illegally, there is no rental liability. So it may take several weeks to get a bailiff out, but there is no rental liability for that period.

Sharon Betton

14:52 PM, 10th October 2016
About 2 years ago

Reply to the comment left by "Luke P" at "10/10/2016 - 10:16":

My understanding is that there is a rental liability until the date the court orders possession. Once that date is passed, as he is there illegally, there is no rental liability. So it may take several weeks to get a bailiff out, but there is no rental liability for that period.

Romain Garcin

15:34 PM, 10th October 2016
About 2 years ago

The standard case is that tenancy is considered to have ended on the date of the court order.

But it does not apply to assured tenancies because, as said in my previous post, the Housing Act explicitly states that an assured tenancy only ends when the court order is executed.

"5 Security of tenure.

(1) An assured tenancy cannot be brought to an end by the landlord except by—
(a) obtaining—
(i) an order of the court for possession of the dwelling-house under section 7 or 21, and
(ii) the execution of the order,"

Until that time the tenant remains tenant and is liable for the full rent as agreed in the tenancy, and not mesme profit for every day of occupation.

Giallo grale

14:33 PM, 21st October 2016
About 2 years ago

Thanks for all your comments.

In case it's caused confusion, the AST was for a two-year term, payable weekly; there has been a long gap between the service of the Section 8 notice (Ground 8 - rent arrears) and obtaining a court order for possession based on that notice. The court issued the order; we have possession, however the former tenants are contesting their liability for rent from the date of expiry of the Section 8 notice to the date on which the court granted possession.

My first lawyer took the view, as many have said, that issuing the Section 8 notice would not end the AST, but that a possession order from the court would be required. He has recently changed his mind.

My recently-appointed second lawyer - from a large Legal 500 practice with a single team specialising in commercial and residential property covering multiple offices in the region - advised from the outset that the tenancy agreement ended on expiry of the Section 8 notice (14 days in this case), irrespective of possession which could be obtained by a court order.

This matters because when the tenancy agreement ends, the terms of the agreement no longer apply. The tenant is no longer liable for the rent as a debt, and any other expenses which would normally accrue to the tenant such as council tax or utilities become the landlord's responsibility. The last rent payment due under the AST is that for the last rent date before the AST ended, 14 days after service of the notice.

If the tenant doesn't handover or leaves their effects in the property, then the landlord can claim mesne damages. That is the cost of the tenant's trespass after the AST ended. But unlike rent, which is a debt, damages are subject to the requirement to minimise them. In practice this would mean that action to recover possession should start promptly, and the courts might allow a maximum of a couple of months to recover possession after the tenant's departure.

When proceedings for possession start promptly, this doesn't make any difference. In my case, the tenant offered to repay the debt over a period and hand over possession by agreement to avoid court action. I took the view that he was good for the increasing debt; when he didn't perform my first lawyer was slow in acting, and the upshot is that I have a weak claim against my former tenant for damages rather than rent, for a lengthy period.

My former tenant's lawyer also agrees with this interpretation of the Section 8 notice, as his defence makes clear. We'll claim the amount of the rent for the full period because the tenant left a large amount of effects and didn't handover the keys, but my lawyer's advice is that it will be assessed as mesne damages and the court is unlikely to award more than the two months which would have been required to gain possession.

To paraphrase my current lawyer's reply when I queried the effect of the Section 8 notice, and why it hadn't been raised before... not many people know this but...

I hope this helps others avoid this pitfall which is rarely mentioned in connection with Section 8.

Of course if anyone can show that the AST agreement continued after expiry of the Section 8 notice, I'd be delighted to hear why.

Giallo grale

14:47 PM, 21st October 2016
About 2 years ago

Reply to the comment left by "Giallo grale" at "21/10/2016 - 14:33":

Just to reiterate - the tenants left before the Section 8 notice expired, i.e. within the two-weeks after service. However that doesn't affect the date on which the AST ended, just the likely amount awarded for mesne damages after the end of the tenancy. If the tenants had remained until possession was granted, then the damages would cover rent for the entire period. As they left much sooner, damages will be lower.

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