New Section 8 Notice Problems

30th April 2021 Commercial Litigation

As from 4 May the Assured Tenancies and Agricultural Occupancies (Forms) (Moratorium Debt) (Consequential Amendment) (England) Regulations 2021 will come into effect.

These regulations do just one thing but it is an important one. That is they amend the current section 8 notice used for possession claims under the Housing Act 1988 and replace it with a new version. The meat of the form is unchanged but there are new notes at the top (for landlords) and at the bottom (for tenants) which deal with the new Breathing Space regulations which come into effect on that day.

Essentially the notes make clear that a section 8 notice cannot be served in respect of a debt which is subject to a Breathing Space. I have written much more on the Breathing Space regulations here.

Existing notices served before 4 May will be fine. However, this also means that any notice posted today (30 April) that is not deemed served until 4 May will need to use the new notice form. So a tenancy agreement that says notices that are deemed served on the next working day will not now be deemed served until 4 May.

If the wrong notice is used then this is not necessarily fatal. The courts can accept that the notice communicates the key information required to the tenant and waive the error. However, given that the breathing space legislation affects the fundamental validity of the notice then the risk of the courts declining to let a landlord off are pretty high.

Anyone looking to serve a section 8 notice will need to use the new templates.

Just to make things more complex the form also contains an error of sorts. The notice periods set out in it are the old ones from before the Covid pandemic changes. That means that the notice periods are described as two weeks for rent arrears for example rather than the actual periods just now of four weeks or six months depending on the level of arrears. Either this is a hint as to what is going to happen at the end of May or there is likely to be another version of the form next week!

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David Smith is a Partner located in Londonin our Commercial Litigation department

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