Assured tenancy notice seeking possession

A landlord must serve a notice of seeking possession (NSP) on an assured tenant before applying to the court for a possession order.

This content applies to England

Requirement for a notice to commence possession proceedings

A landlord must first serve a notice of intention to bring proceedings on the tenant.[1] The notice is commonly referred to as a 'notice seeking possession' (NSP) or a 'section 8 notice'.

Section 8 Housing Act 1988 requires the notice to state a date after which possession proceedings can start.

See grounds for possession for circumstances in which a landlord can apply for possession of an assured tenancy.

From 4 May 2021 a section 8 notice served on grounds 8, 10 and 11 (grounds relating to rent arrears) during the breathing space period where rent arrears are included in the moratorium is invalid.[2]

Covid-19: Extended minimum notice periods for assured tenants

Assured tenants are entitled to longer notices between 26 March 2020 and 30 September 2021. These rules also apply to assured shorthold tenants if a landlord is seeking possession on grounds.

The notice assured tenants are entitled to is commonly referred to as a section 8 notice.

The minimum notice periods are:[3]

Four months for section 8 notices served between 1 June 2021 and 30 September 2021.

Six months for section 8 notices served between 29 August 2020 and 31 May 2021.

Three months for section 8 notices served between 26 March 2020 and 28 August 2020.

For section 8 notices served on or after 1 June 2021 the landlord must use the updated form 3.[4]

In certain circumstances the landlord can serve a shorter section 8 notice.

Exceptions for rent arrears

The following rules apply if the landlord is seeking possession on grounds related to rent arrears.

Between 29 August 2020 and 30 September 2021 the minimum notice period is four weeks if the landlord serves a notice on the grounds for rent arrears (grounds 8, 10 and 11), and the arrears are equal or over:[5]

  • six months’ worth of rent for notices served between 29 August 2020 and 31 May 2021

  • four months’ worth of rent for notices served between 1 June 2021 and 30 September 2021

From 1 August 2021 landlords can serve a two months’ notice for rent arrears of less than four months as long as they rely only on grounds 8, 10 or 11.[6]

Exceptions for grounds relating to the tenant’s conduct

Between 29 August 2020 and 30 September 2021, a two weeks’ notice is needed if the landlord relies on one of the following grounds:[7]

  • domestic violence (ground 14A)

  • conviction for an offence committed at a riot (ground 14ZA)

  • acquiring the tenancy as a result of a false statement (ground 17)

Between 29 August 2020 and 30 September 2021 standard section 8 notice rules apply if the landlord is seeking possession on the grounds of anti-social behaviour (grounds 7A and 14).[8] If the landlord is relying on the discretionary ground 14, the courts have the power to waive the requirement for a section 8 notice.

Exception for failing the right to rent check

From 1 June 2021 until 30 September 2021 the minimum notice period is two weeks if the landlord is seeking possession following the tenant’s failure to pass the right to rent check (ground 7B).[9]

Between 29 August and 31 May 2021 the minimum notice period for ground 7B was three months.[10]

Exception where the assured tenant died

From 1 June 2021 the minimum notice period is two months if the landlord is seeking possession following the death of a former tenant (ground 7).[11]

Between 29 August and 31 May 2021 the minimum notice period for ground 7 was three months.[12]

The 'Technical guidance on eviction notices' document which forms part of the updated government guidance on Covid-19 and renting for landlords, tenants and local authorities contains a table summarising the minimum notice requirements for each tenancy.

Standard notice periods

The NSP must state a date after which court proceedings can start.[13]

For notices served on or before 25 March 2020 the following standard notice periods apply:

  • for grounds 1, 2, 5, 6, 7, 9 and 16 – the date specified must be at least two months after service (or a period equivalent to the contractual period of the tenancy, if longer)

  • for ground 14 – court proceedings for claims can start immediately[14]

  • for all other grounds (except 7A) – the date specified must be at least two weeks after service

An NSP served under ground 14 must state that court proceedings may be started immediately and give a date when the landlord requires the tenant to leave the property.

Specific requirements when using mandatory ASB ground 7A

When possession is sought under the mandatory antisocial behaviour (ASB) ground 7A, the NSP must:

  • set out details of the conviction, order, or finding on which the landlord wants to rely to show the condition is met[15]

  • specify the date after which court proceedings can start, which must be:[16]

  • at least four weeks after the service of the NSP (or one month in case of a fixed-term tenancy), and

  • the first or last day of the period of the tenancy (unless the tenancy agreement says otherwise)

Time limits for the service

The time limits for the service of the NSP on the tenant vary according to which condition is being relied upon:[17]

  • for condition 1 (conviction of serious offence), condition 3 (breach of a criminal behaviour order), or condition 5 (noise nuisance) – the NSP must be served within 12 months of the date of conviction, or if appropriate within 12 months of an appeal being decided or abandoned

  • for condition 2 (breach of an injunction to prevent nuisance or annoyance) – the NSP must be served within 12 months of the date the court found the injunction had been breached, or if appropriate within 12 months of an appeal being decided, abandoned or withdrawn

  • for condition 4 (closure order) – the NSP must be served on the tenant within 3 months of the date the closure order was made, or if appropriate within 3 months of an appeal being decided, abandoned or withdrawn

Duration and expiry

An NSP expires 12 months after service. A landlord wishing to start court proceedings beyond that period will need to serve a fresh NSP.[18]

Form and content

The notice must:

  • be in the prescribed form, or in a form substantially to the same effect

  • specify the ground(s) on which possession is being sought

  • set out the 'particulars' of the ground, explaining how the ground applies

Prescribed form

A notice seeking possession on an assured tenancy must be served in the prescribed form or be substantially to the same effect.[19] If there is a dispute, it is for the court to decide whether the notice is valid.

A notice served on or after the date when the prescribed notice form is amended must be either in the new prescribed form or substantially to the same effect.

The prescribed notice form was amended on 4 May 2021 to reflect the breathing space provisions.[20] Any notice served on or after 4 May 2021 has to be in the new form or substantially to the same effect.

In line with the Coronavirus-related provisions in Schedule 29 to the Coronavirus Act 2020, until 31 May 2021 the notice is to be read so that extended notice periods apply (see 'Covid-19: Extended minimum notice periods' above).[21]

Possession grounds and how they apply

The notice must list the grounds on which the landlord is seeking possession and explain how these grounds apply.[22]

If insufficient particulars are given, then the possession claim should be struck out.[23] A landlord can ask for permission to add to or alter the particulars, but permission will only be given where it would be just and equitable to do so.[24] If the particulars are inaccurate (for example, the rent arrears figure stated is later conceded to have been wrong), the court can allow the claim to proceed or the particulars to be amended.[25]

It is likely that each case will have to be considered individually and in the context of its particular circumstances. 

Court decisions on the validity of section 8 notice

The Court of Appeal has examined the relevant case law and outlined the approach for assessing the validity of statutory notices, including notices for assured tenants:[26]

  1. Would a reasonable recipient reading the notice in context understand it?[27] Consideration may be given to any covering letters accompanying the notice.[28]

  2. If the reasonable recipient would be able to spot the error and establish the notice’s intended meaning, this is how the notice should be interpreted.

  3. Does the notice comply with the statutory requirements specific to the legal regime under which it is served?[29]

  4. If the notice, properly interpreted, does not comply with the statutory requirements, does the relevant statutory regime permit the notice to be substantially to the same effect as the prescribed form?

In the same case, the Court of Appeal held that where the landlord had served a notice on the grounds of rent arrears and had recorded the date after which court proceedings would commence as 26 November 2017 instead of 26 November 2018, the notice was valid, because it passed the reasonable recipient test (the wrong date was described by the Court as an obvious typographical error and there was a covering letter that stated the correct date), and the date after which possession proceedings would commence was not of particular contractual significance but provided the tenant faced with a threat of possession with enough time to consider what course of action to take.[30]

Signing by agent

In Prempeh v Lakhany,[31] the Court of Appeal held that a section 8 notice can contain the name and address of the landlord's agent, instead of the landlord's details. A section 8 notice is not a 'demand for rent' within the meaning of s.47 Landlord and Tenant Act 1987, which would require the details of the landlord.

Service of section 8 notice

A landlord is not required to serve the NSP in any particular way. In the event the tenant does not acknowledge service, a landlord must prove that the NSP was served.

Section 196 of the Law of Property Act 1925 allows for valid service of the NSP to be made by registered post or recorded delivery, or personal delivery to the tenant's property, but only when the tenancy agreement explicitly states that service will be effective where it is done in accordance with section 196. Alternatively, the agreement can provide expressly for service by these methods.[32]

Service of notice on joint tenants

The notice must be served on all joint tenants and all tenants must be named on the notice, even if some are not resident.[33]

Dispensing with requirement for notice

The requirement for an NSP to be served may be dispensed with if the court considers it just and equitable to do so (for example, where a tenant has caused a considerable nuisance to neighbours).[34]

Factors for the court to take into account include:[35]

  • the harm or hardship caused to both landlord and tenant

  • the effect of the notice not being served, and

  • whether the tenant has raised the notice point promptly

The court does not have the power to dispense with the requirement for service of an NSP where the landlord is seeking possession under grounds 7A (mandatory ASB ground), 7B (no right to rent ground) or 8 (rent arrears ground).[36]

Last updated: 1 June 2021

Footnotes

  • [1]

    s.8 Housing Act 1988, as amended by s.151 Housing Act 1996 and s.97 Anti-social Behaviour, Crime and Policing Act 2014.

  • [2]

    reg 7(7)(j) The Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England and Wales) Regulations 2020 SI 2021/1311.

  • [3]

    para 6 Sch 29 Coronavirus Act 2020, as amended by reg 2(7) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564; para 1(1)(b)(i) Sch 29 Coronavirus Act 202 as amended by reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 SI 2021/284 and reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564; reg 3 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [4]

    reg 3 The Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) and Suspension (Coronavirus) Regulations 2021

  • [5]

    para 6 Sch 29 Coronavirus Act 2020, as amended by reg 3(6) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914 and reg 2(7) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564; para 1(1)(b)(i) Sch 29 Coronavirus Act 202 as amended by reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 SI 2021/284 and reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [6]

    para 6(e) Sch 29 Coronavirus Act 2020, as amended by reg 2(7)(b) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564; para 1(1)(b)(i) Sch 29 Coronavirus Act 202 as amended by reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 SI 2021/284 and reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [7]

    section 8 Housing Act 1988 as amended by para 6 Sch 29 Coronavirus Act 2020, as amended by reg 3(6) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; para 1(1)(b)(i) Sch 29 Coronavirus Act 202 as amended by reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 SI 2021/284 and reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [8]

    para 3(6) Coronavirus Act 2020 as amended by reg 2(c) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; para 1(1)(b)(i) Sch 29 Coronavirus Act 202 as amended by reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2021 SI 2021/284 and reg 2(2) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [9]

    para 3(6) Coronavirus Act 2020 as amended by reg 2(7) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [10]

    see reg 3(6)(d) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

  • [11]

    para 3(6) Coronavirus Act 2020 as amended by reg 2(7)(c) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 SI 2021/564.

  • [12]

    see reg 3(6)(d) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914.

  • [13]

    s.8(3)(b) Housing Act 1988.

  • [14]

    s.8(4) Housing Act 1988.

  • [15]

    s.8(2) Housing Act 1988.

  • [16]

    s.8(3A) Housing Act 1988 as inserted by s.97(2)(b) Anti-social Behaviour Crime and Policing Act 2014.

  • [17]

    s.8(4C to 4F) Housing Act 1988 as inserted by s.97(2)(e) Anti-social Behaviour Crime and Policing Act 2014.

  • [18]

    s.8(3)(c) Housing Act 1988.

  • [19]

    Form No.3 Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015 SI 2015/620, as amended by Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment) Regulations 2016 SI 2016/443, and from 1 December 2016 by Assured Tenancies and Agricultural Occupancies (Forms) (England) (Amendment No.2) Regulations 2016 SI 2016/1118; for temporary changes during the coronavirus pandemic, see paras 10-12 Sch 29 Coronavirus Act 2020, as amended by reg 3(10)-(11) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; reg 2 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Wales) Regulations 2020 SI 2020/1044 (W.233); reg 2 The Assured Tenancies and Agricultural Occupancies (Forms) (Moratorium Debt) (Consequential Amendment) (England) Regulations 2021 SI 2021/518.

  • [20]

    reg 2 The Assured Tenancies and Agricultural Occupancies (Forms) (Moratorium Debt) (Consequential Amendment) (England) Regulations 2021 SI 2021/518.

  • [21]

    see paras 10-12 Sch 29 Coronavirus Act 2020, as amended by reg 3(10)-(11) The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; reg 2 The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) Regulations 2020 SI 2020/914; Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Wales) Regulations 2020 SI 2020/1044 (W.233).

  • [22]

    Mountain v Hastings (1993) 25 HLR 427.

  • [23]

    Torridge v Jones (1986) 18 HLR 107, CA.

  • [24]

    s.8(2) Housing Act 1988.

  • [25]

    Marath v MacGillivray (1996) 28 HLR 484, CA.

  • [26]

    Pease v Carter & Anor [2020] EWCA Civ 175.

  • [27]

    Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 747.

  • [28]

    York v Casey [1998] 31 HLR 209.

  • [29]

    The Court of Appeal used section 21(4)(a) of the 1988 Act as an example, see Pease v Carter & Anor [2020] EWCA Civ 175, para 50.

  • [30]

    Pease v Carter & Anor [2020] EWCA Civ 175.

  • [31]

    Prempeh v Lakhany [2020] EWCA Civ 1422

  • [32]

    Wandsworth LBC v Attwell (1995) 27 HLR 536, CA; s.196 Law of Property Act 1925, as amended by the Recorded Delivery Service Act 1962.

  • [33]

    s. 45(3) Housing Act 1988; Newham LBC v Okotoro March 1993, Legal Action 11, Bow County Court; Ch.2.8 Defending Possession Proceedings, 8th ed., LAG 2016.

  • [34]

    s.8(1)(b) Housing Act 1988.

  • [35]

    Kelsey Housing Association v King (1996) 28 HLR 270, CA.

  • [36]

    s.8(5) Housing Act 1988, as amended by s.97(2)(f) Anti-social Behaviour Crime and Policing Act 2014 and (with effect from 1 December 2016) by s.41(4) Immigration Act 2016.