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6 Common Defenses and Counterclaims That Tenants Use to Escape Section 8 Eviction Notices

Property Technology Blog

With Section 21 potentially on its way out, all eyes are on Section 8 as the best remaining means of evicting a tenant. But thousands of Section 8 eviction notices fail each year because tenants offer valid defenses or counterclaims against their landlords. The best way to make sure your Section 8 eviction notice isn’t one of these is to adhere to the process correctly and protect against the most common defenses and counterclaims. 
Below are some of the most frequently occurring blocks to the Section 8 process. 

The form was filled out incorrectly

The Section 8 notice is filled with dozens of tiny details, each of which must be completed accurately in order to ensure the notice is valid. Tenants can appeal against an invalid Section 8 notice if (amongst other things) it doesn’t contain:

  • The landlord’s title
  • The tenant’s name
  • The full and correct address of the property
  • The grounds for possession (why you want the tenant to leave)
  • The date your notice ends (if the tenant doesn’t leave by this date you will need to apply for a possession order). 

Serving the notice incorrectly

A Section 8 notice needs to be served in writing. 

Claiming the reason for eviction is invalid

There are 17 grounds for possession – ensure you have evidence of each one that you cite. It’s worth checking the wording of your AST before you submit the form – one landlord recently ran into trouble for citing rental arrears as a grounds for possession but the wording of his AST, which specified the rent be paid every four weeks (rather than monthly), left him open for a counterclaim. 

Disrepair on the property not dealt with in a timely fashion

Speaking of counterclaims, one of the most popular ways to escape eviction is to claim disrepair to the property that has not been dealt with in a timely fashion. Landlords should make sure they document all communication around repairs to protect themselves from this counterclaim.  

Landlord failed to protect the deposit

Particularly relevant when landlords are claiming rental arrears is the claim that the landlord did not protect their deposit in a registered government deposit scheme. The penalty for failing to do can be up to three times the deposit amount so it’s vital you do adhere to the law on this otherwise, not only is your possession order likely to be rejected, you could score yourself a hefty fine in the process. 

Unlawful eviction

Another popular counterclaim is accusing the landlord of attempting to carry out an unlawful eviction or harassment. Though trying to evict an uncooperative or unresponsive tenant can be incredibly frustrating, it’s important to trust the process. Section 8 may offer more restricted terms than Section 21 but it has been proven that, if followed correctly, it does work.
If you’d like more information about Section 8 notices, download our free Section 8 Factsheet. It is packed full of guidance notes to help make sure you issue Section 8 notices correctly. 
Section 8  ebook cover

DISCLAIMER: This article was written with reference to case law and legislation, but is only an overview on a complicated legal area. If you need help with your Section 8 or Section 21 notice, always consult a solicitor for professional advice.

Riemy Wan

Written by: Riemy Wan

Content Marketing Manager at Fixflo. Reader and contributor on all things #propertymanagement.

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