Law guide: Property

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Recovering possession of a private residential tenancy

Recovering possession of a private residential tenancy

Contents

A private residential tenancy (PRT) is open ended, so you can only end the tenancy by using one of the 18 grounds for eviction specified in the Private Housing (Tenancies) (Scotland) Act 2016. If you decide to end the tenancy, you must serve a formal statutory notice – a Notice to Leave. This must detail the eviction ground(s), why each ground applies and the date that the tenancy is to end.

You should provide the tenant with a copy of any supporting evidence for the eviction ground when you serve the Notice to Leave on the tenant.

A Notice to Quit is not required for a PRT.

To end a joint tenancy, you must serve a notice to leave on all the joint tenants.

Notice periods for landlord

The amount of notice depends on how long the tenant has lived in the property and the ground(s) you are using to evict them.

You must give at least 28 days' notice if the tenant has lived in the property for six months or less, regardless of which eviction ground you are using.

You must give at least 84 days' notice if the tenant has lived in the property for more than six months, unless you are only using one or more of the following eviction grounds: 7, 8, 11, 12, 13 and 17. If you are only using one or more of these grounds you must give at least 28 days' notice, regardless of how long the tenant has lived in the property

If you send your tenant the Notice to Leave by recorded delivery post or email, you must allow the tenant 48 hours to receive it. This delivery time should be factored into the amount of notice you give the tenant.

Eviction orders

If you give the tenant a Notice to Leave and they don't move out the end of the notice period, you must apply to the Tribunal for an eviction order before the tenant can be lawfully removed from the property. If you remove the tenant from the property or attempt or threaten to do so, or if you change the locks, then you are committing a crime.

You must apply to the Tribunal no more than six months following the expiry of the notice period.

Before you apply to the Tribunal you must inform the local council because of the potential to create homelessness. A list of local council contact details for notification is available on the gov.scot website.

You must give the Tribunal a copy of the PRT agreement and the Notice to Leave.

If the tenant does not leave the property voluntarily after an eviction order has been granted then to be lawful the eviction must be carried out by Sheriff Officers, not by you, your employees or agents.

Grounds for eviction

There are 18 different grounds for eviction.

The first eight grounds are mandatory. This means that if the Tribunal agrees that the ground exists, the tenant must leave the property.

The next eight grounds are discretionary. This means that even if the Tribunal agrees that the ground exists, it must then decide whether it is reasonable to issue an eviction order.

The final two grounds are either mandatory or discretionary depending on the circumstances of the case.

Mandatory grounds

1. Landlord intends to sell the let property

This applies if you plan on putting the let property up for sale within three months of the tenant moving out. Evidence could include a letter from a solicitor or an estate agent, or a recent home report for the property.

2. Let property to be sold by lender

This applies if your mortgage lender wants to repossess the property and sell it.

3. Landlord intends to refurbish the let property

This applies if you want to carry out major works to the let property that are so disruptive that the tenant would not be able to live there at the same time. Evidence could include planning permission, or a contract between you and an architect or a builder for the work to be carried out.

4. Landlord intends to live in let property

This ground applies if you want the tenant to move out of the property so that you or your joint landlord can move in. Evidence could include a sworn statement (affidavit) stating this is what you intend to do.

5. Landlord intends to use the let property for non-residential purpose

This applies if you want the tenant to move out, so you can use the property for something other than a home. Evidence could include planning permission that will let you use the property for a different purpose.

6. Let property required for religious worker

This applies if the property is for someone who works for a religious purpose. This means that the person carries out religious work from the property and the property has been used for this purpose at some time before the tenant began living there.

7. Tenant has a relevant criminal conviction

This ground applies if the tenant is convicted of an offence punishable by imprisonment that involved them using the property for illegal reasons, or letting someone use the property for illegal reasons, or committing a crime within or near the property.

You must apply within a year of the tenant getting the conviction, unless you have a reasonable excuse for not applying before then.

8. Tenant is no longer occupying the let property as main home or has left the property

This applies if the property isn't being used as the tenant's main or only home. This does not apply if you have failed to keep the property in good repair and the tenant has had to move out for their own safety. This also applies if the tenant has abandoned the property.

Discretionary grounds

9. Landlord's family member intends to live in the let property

This applies if a member of your family plans to move into the property as their only or main home for at least three months.

The family members are:

  • Someone you're married to
  • Someone you're in a civil partnership with
  • Someone living with you as though they were married to you
  • A parent or grandparent
  • A child or grandchild
  • A brother or sister
  • Step or half relatives (like a stepson or half-sister)
  • A person being treated as someone's child even if they aren't related biologically or legally
  • Any family member (as listed above) of your spouse, civil partner or person living with you as though you were married
  • The spouse or civil partner of any family members listed above, or someone living with them as though they were married

Evidence could include an affidavit stating that this is your family member's intention.

10. Tenant no longer needs supported accommodation

This applies if the tenant moved in because they had a need for community care but have since been assessed as no longer having that need.

11. Tenant has breached a term of the tenancy agreement

This applies if the tenant has not complied with one or more of the terms of tenancy. This does not apply to rent arrears for which there is a separate ground (see ground 17 below).

12. The tenant has engaged in relevant antisocial behaviour

This applies if the tenant has behaved in an antisocial way to another person, by doing something which causes them alarm or distress, is a nuisance or annoyance or is considered harassment.

The Tribunal will consider the behaviour, who it involved and where it occurred to decide whether to issue an eviction order. You must apply within a year of the conviction or behaviour taking place, unless you have a reasonable excuse for not applying before then.

13. Tenant has associated in the let property with someone who has a criminal conviction or is antisocial

This applies if the tenant allows someone into their property and they behave in an antisocial way that would have them evicted if they were the tenant. You must apply within a year of the conviction or behaviour taking place, unless you have a reasonable excuse for not applying before then.

14. Landlord has had their registration refused or revoked

This applies if you aren't registered as a landlord in the local council area where the property is located.

15. Landlord's HMO licence has been revoked

This applies if the HMO (House of Multiple Occupancy) licence for the property has been removed and keeping all the tenants in the property would no longer be legal.

16. An overcrowding statutory notice has been served on the landlord

This applies if an overcrowding statutory notice has been served on you because the property is overcrowded to the extent that it may affect the health of the people living there.

Grounds which could be mandatory or discretionary

17. Tenant is in rent arrears over three consecutive months

This applies if the tenant has been in rent arrears for three or more months in a row.

If the tenant still owes at least one month's rent by the first day of the Tribunal hearing, the ground is mandatory, and the Tribunal must issue an eviction order provided that the arrears were not due to a delay or failure in the payment of a relevant benefit.

If the tenant owes less than a month's rent by the first day of the Tribunal hearing, the ground is discretionary, and the Tribunal will decide whether it is reasonable to issue an eviction order.

18. Tenant has stopped being, or has failed to become, an employee

This applies if the tenancy was for your existing or expected employee, but the tenant is no longer an employee.

The Tribunal's decision is mandatory if you apply within 12 months of the tenant no longer being an employee, or, if the tenant never became an employee and you apply within 12 months of the tenancy starting.

The Tribunal's decision is discretionary if you apply outside these timescales.

Wrongful termination

If the tenant believes they have been misled into leaving the property, they can apply to the Tribunal for a wrongful termination order.

The Tribunal may make an order if it decides that you misled the Tribunal into issuing an eviction order it shouldn't have or wrongly made the tenant leave the property.

If you are issued with an order the maximum penalty is to pay the tenant six months' rent.

If you're a joint landlord, the Tribunal may make the order against all, some, or only one of you.

If the Tribunal makes a wrongful termination order, they must also send a copy to any local council where you are registered as a landlord. This could impact upon the local council's assessment of your suitability as a fit and proper person to be a landlord.