The Court of Appeal has recently considered the precise wording required in a Ground 8, Section 8 Notice Seeking Possession, issued by landlords to regain possession of properties where tenants fall into rent arrears. The law states that if a tenant is more than eight weeks or two months behind with their rent when the Notice is issued to them and also at the subsequent possession hearing, as long as the Notice is valid, the Judge has no discretion and is required to make a Possession Order. This is because Ground 8 is a mandatory ground for possession under schedule 2 of the Housing Act 1988 (as amended by the Housing Act 1996).
However, what tenants often don’t realise is that there is a way of defending these type of proceedings; by bringing a counterclaim against the landlord. Such counterclaims are often based on the landlord’s failure to comply with their repairing obligations or their failure to protect the tenant’s deposit and comply with the statutory regulations regarding the prescribed information to be given to the tenant. Where that counterclaim is successful the damages awarded are off-set against the rent arrears and if the arrears then fall below the eight week/two month level, the ground 8 claim will be defeated. However, if other rent arrears grounds have been included in the Notice (such as ground 10 – rent due is unpaid and 11 – persistent delays in paying rent), the Judge will still have the discretion to make a Possession Order where it is reasonable to do so.
In order to be valid, the Section 8 Notice amongst other things must set out the grounds for possession. In the case of The Queen on the Application of Masih v Yousaf  EWCA Civ 234, the Court of Appeal considered the issue of a Section 8 Notice which rather than setting out the statutory words of Ground 8 verbatim, substituted the wording with the landlord’s own explanation of the ground. The statutory wording states that rent means “rent lawfully due”. In this case the landlord did not make this explicitly clear and instead referred to the rent being “owed.” The tenant argued that the words “lawfully due” were essential in enabling a tenant to identify and consider whether they have any basis to argue that the rent is not lawfully due, such as when they have a counterclaim to be considered. Unfortunately, the Court dismissed this argument and Lord Justice Floyd stated that “a statement in a section 8 notice that the rent was owed in my judgment is sufficient notice to enable a recipient to appreciate that it would be an answer to the claim to show that the rent was not lawfully due.” Therefore where a landlord does not quote the legal grounds explicitly, the Notice can still be valid and relied on in obtaining a Possession Order, as long as it gives an adequate explanation of the information set out in the statutory wording.
However, in my view neither “rent owed” or” rent lawfully due” gives a clear explanation to a tenant receiving a Notice that they have the potential to raise a counterclaim to the proceedings. A lay person reading a notice with either of these phrases is likely to simply consider that rent lawfully due means rent which they are contractually obliged to pay under the tenancy agreement. Without any legal knowledge or advice they are highly unlikely to be aware that they can raise a counterclaim to the proceedings. Many tenants will be unaware that issues over the condition of their property or the way their deposit has been handled can be raised to defend possession proceedings where they have fallen behind with their rent.
Therefore, legal advice at an early stage is crucial in successfully defending the proceedings. Counterclaims need to be raised as soon as proceedings are issued and therefore anyone who receives a Section 8 Notice from their landlord should seek legal advice immediately.
Stephensons is able to offer help and assistance with Section 8 Notices and subsequent possession proceedings under Legal Aid funding.
If you require any assistance, please contact the Housing team on 0333 344 4772