This is a question we get asked a lot at Woodstock. Especially where there are rent arrears and the fixed term has expired or is soon to expire.
Historically, section 21 notices and the accelerated possession procedure were seen as the easiest and quickest way to get possession of your property, even when there were rent arrears. However, our experience at Woodstock is that this is not necessarily the case.
The law surrounding the service of a section 21 notice to obtain possession is complex. We are routinely seeing new issues being flagged up by judges at county court level, which puts these notices at risk of being considered invalid. For example: -
1. Agents failing to include the landlords full name and address at section 4 of the notice and instead putting c/o.
2. Failure to sign in accordance with the Companies Act
3. Failure to serve a GSC prior to the commencement of the tenancy.
The above, coupled with the increasing administrative pressure placed on the courts, means that not only are section 21 notices sometimes harder to get right, but when proceedings are issued, it can take a longer time for the claim to progress through the courts making them far less “accelerated” then they should be.
By comparison, when serving a section 8 notice, you are not required to have served an EPC, GSC or How to Rent Guide for the notice to be considered valid. Judges also seem to be less picky on some of the other issues raised above, presumably because possession is not being sought on a no-fault basis.
In addition, once a section 8 notice has expired, we are able to immediately issue proceedings online. In 9 out of 10 claims issued online, the hearing date is fixed and confirmed immediately. This gives all parties a point in time which they must work towards and you are not reliant on the judges getting to your claim amongst the pile of paperwork in front of them or the overburdened court staff processing the paperwork.
Once possession is obtained, having issued the claim online, if you require a bailiff appointment this can be applied for online with a warrant, usually being immediately issued. When using accelerated possession procedure, you have instead to either use snail mail or email and wait for the court to again get through their paperwork and issue the warrant before sending it across to confirm an appointment with the bailiff.
Our advice is to always serve both notices. This ensures you have options and a backup.
So, what are the options: -
1. Issue using the accelerated possession procedure and pursue any rent arrears (and damages) as a separate claim. This is something that our debt recovery department would happily assist you with.
2. Issue proceedings once the section 8 notice has expired using the Possession Claims Online. The risk of course is if the rent arrears are cleared, and we no longer satisfy mandatory ground 8 for possession. However, if a section 21 notice has been served, you have a better chance of persuading the court to exercise its discretion to avoid inevitable fresh proceedings being issued once you walk of the court room. And if the Judge isn’t playing ball then of course you can immediately issue a new claim.
3. Issue using the standard possession procedure. This is a paper based claim and probably the slowest of all methods; however, you may rely on both your section 8 and section 21 notice in the same proceedings. This means that you minimise the risk of failing to obtain possession and you can obtain possession and judgment for arrears of rent.
If you are still not sure upon reviewing the above option, please do not hesitate to give us a call. We will happily run you through the options on a case by case basis.