Deposit not protected? Why a court can't give you possession (Section 8, 2026)
The short answer
Can I get possession under Section 8 if the deposit wasn't protected or the prescribed information wasn't given?
Not until you put it right. Since 1 May 2026, section 215 of the Housing Act 2004, as amended by the Renters' Rights Act 2025, says that where a deposit was paid for an assured tenancy in England, a court may only make a possession order if the deposit is held in an authorised scheme, the scheme's initial requirements have been met and the prescribed information has been given. That applies to every Section 8 ground except Ground 7A and Ground 14 (serious anti-social behaviour and nuisance). Protecting late, or returning the deposit, before the hearing lifts the bar, but the tenant can still claim one to three times the deposit.
What changed
Before 1 May 2026 an unprotected deposit stopped a landlord serving a Section 21 notice, but a Section 8 claim could still succeed. Section 21 has gone, and the deposit rule now attaches to the possession order itself: the court cannot make one, whatever the ground, unless the deposit requirements are met.
The three conditions
The deposit is being held in an authorised scheme (TDS, DPS or mydeposits).
The scheme's initial requirements were complied with when the deposit was received. Doing this late still counts for possession purposes.
The prescribed information was given to the tenant, and to anyone who paid the deposit on their behalf, with every particular in the 2007 Order and the landlord's signed certificate.
If you missed it
Protect the deposit now (check what the scheme's rules say about late protection) and serve the prescribed information, keeping a dated record. Or return the deposit in full, or with deductions the tenant agrees. If the tenant has already brought a penalty claim, the bar ends once that claim is decided or settled.
You can still serve a Section 8 notice and issue a claim while you put it right; the order simply cannot be made until you have. Rent arrears claims under Ground 8 are the ones most affected, and a penalty award can reduce the arrears below the Ground 8 threshold.
Proving it
A tenant's adviser will check the deposit first. Keep the scheme certificate, the prescribed information exactly as given, and a dated record of when and how each tenant received it.
Questions landlords ask
- Does this apply to Ground 8 rent arrears?
- Yes. Every ground except 7A and 14 is caught, including Ground 8.
- I protected the deposit late. Can I still get possession?
- Yes, once it is protected and the prescribed information has been given before the court makes the order. The late protection can still lead to a penalty claim of one to three times the deposit.
- I didn't take a deposit. Does this affect me?
- No. The rule only applies where a tenancy deposit was paid.
- Is this legal advice?
- No. It is a summary of the statute. If you are about to issue a possession claim, take advice on your own facts.
Sources
verified 2026-09-30- Housing Act 2004 s.215, as substituted by the Renters' Rights Act 2025
- Housing Act 2004 ss.213–214
- Housing (Tenancy Deposits) (Prescribed Information) Order 2007, SI 2007/797
Next step
Check whether your paperwork would stop a possession order
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This is not legal advice and not a substitute for a solicitor.