Serve Twice, Wait Less: A Smarter Section 8 Approach
- easternlandlords
- 6 hours ago
- 4 min read
Most landlords assume they must wait until a tenant owes three months' rent before taking formal action under Ground 8.
However, an alternative approach is available!
Step 1: Contact the Tenant and Understand the Situation
Before considering any formal action, the first step should always be to contact the tenant and find out why the rent has not been paid.
There can be many reasons for a late payment. It may be a simple oversight, a banking issue, delayed wages, a benefits problem, or a temporary financial difficulty. The only way to understand the circumstances is to have a conversation.
Landlords are often in a good position to assess the situation based on their previous experience with the tenant. A tenant who has consistently paid on time for several years and suddenly misses a payment presents a very different risk profile to someone with a history of late or missed payments.
The key at this stage is to establish:
Why the rent has not been paid.
Whether the tenant is engaging and communicating.
Whether there is a realistic plan to clear the arrears.
The likelihood of the account being brought back up to date.
In many cases, the matter can be resolved without the need for formal action.
Step 2: Serve a Section 8 Notice Under Ground 10 (and Ground 11 Where Appropriate)
If a reasonable period has passed, typically one to two weeks, and the arrears remain unpaid, the landlord may wish to consider serving a Section 8 Notice.
Ground 10 can be relied upon where rent arrears exist at the date the notice is served and at the start of court proceedings.
Ground 11 may also be relevant where there is a history of persistent delay in paying rent, even if the tenant has previously cleared arrears.
This allows a landlord to begin addressing the issue without waiting for the arrears to reach the Ground 8 threshold.
Step 3: Continue Monitoring the Arrears
If the tenant continues to miss payments and the arrears increase to three months or more, the landlord can then serve a second Section 8 notice relying on Ground 8 (this is a mandatory ground).
At this point, the landlord has two important pieces of evidence:
An ongoing court claim based on Grounds 10 and 11.
A subsequent Ground 8 notice showing the arrears have continued to worsen and have now reached the mandatory possession threshold.
Landlords should keep a written record of all communications with the tenant, including payment promises, explanations given and any proposals to clear the arrears.
Why Could This Be Important?
Grounds 10 and 11 are discretionary grounds, meaning the court must decide whether it is reasonable to grant possession.
When the original Grounds 10 and 11 case comes before the court, the landlord can present evidence that:
The tenant was already in arrears when the first notice was served.
The landlord took action at an early stage.
The tenant failed to improve their payment behaviour.
Arrears continued to increase after proceedings began.
A further Section 8 notice under Ground 8 has since been served because the arrears have reached three months.
It is also important to remember that possession proceedings can take a considerable amount of time to progress through the court system. Depending on the circumstances of the case and the court's workload, it may take several months, and in some cases significantly longer, from the service of a notice to the final hearing.
As a result, a landlord who takes early action under Grounds 10 and 11 may find that, by the time the matter reaches court, the arrears have increased to three months or more and would therefore satisfy the Ground 8 threshold as well. The landlord can then demonstrate not only that the tenant was already in arrears when the original notice was served, but also that the arrears continued to worsen over time to the point where the mandatory Ground 8 threshold has been reached.
In these circumstances, a judge may consider that the tenant's conduct demonstrates a persistent failure to meet their obligations and that possession is reasonable under Grounds 10 and 11.
Rather than waiting for a separate Ground 8 claim to progress through the court system, the existence of the later Ground 8 notice may assist the court in understanding that the arrears problem has escalated and is unlikely to improve.
A Common-Sense Approach
Every case will turn on its own facts, and no landlord should assume that possession will automatically be granted under Grounds 10 and 11 simply because a later Ground 8 notice has been served.
However, presenting the court with a chronology that shows:
1. Early arrears;
2. Prompt action by the landlord;
3. Continued non-payment by the tenant; and
4. Arrears eventually reaching the Ground 8 threshold,
may assist the court in understanding the full history of the tenancy and the tenant's ongoing failure to address the arrears. In appropriate cases, this may support the landlord's argument that it is reasonable to grant possession at the first hearing.
The Key Takeaway
Don't assume you have to wait for Ground 8.
Serving a Section 8 notice under Grounds 10 and 11 at the earliest opportunity may get your case before the court sooner. If the tenant continues to ignore their rent obligations and eventually reaches three months' arrears, a further Ground 8 notice can be used as evidence that the situation has deteriorated even further.
While the decision remains a matter for the court, this approach may provide a practical route to possession sooner than simply waiting for Ground 8 before taking any action at all.
Important: This article is intended as general information for landlords and should not be relied upon as legal advice. Landlords should seek professional advice on the facts of their individual case before commencing possession proceedings.
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