Law guide: Landlords

See how we helped Liz

"It's not just a website... there are people there on call who can help answer your queries."

Liz W, London

Recovering possession on s 18 grounds

Recovering possession on s 18 grounds

Contents

Grounds for possession

The following provides a summary of the grounds for obtaining possession of a property let using an assured or a short assured tenancy agreement under s 18 of the Housing (Scotland) Act 1988.

For initial steps to take if the tenant falls into rent arrears, see Rent arrears.

For a summary of the grounds for possession, see Overview – Recovering possession in Scotland.

Rent arrears is the most commonly used of the statutory grounds; the procedure to regain possession, however, is the same whether you're relying on rent arrears or any other ground.

Whichever way you seek possession, you must first serve legal notices on the tenant to give them notice of the intended date and the ground(s) to regain possession; you must do this before you can apply to the First-tier Tribunal for an eviction order. A notice to quit and an AT6 form – Notice of Intention to raise Proceedings are required.

Difference between mandatory and discretionary grounds

The grounds for obtaining possession are divided between mandatory grounds, on which the Tribunal must grant a possession order requiring the tenant to vacate the property and discretionary grounds, where the Tribunal may grant a possession order if it is reasonable to do so depending on the facts.

If discretionary grounds are used, the Tribunal may also decide to allow the tenant to remain in the property provided that they meet certain conditions, such as paying the rent by instalments. In these circumstances no eviction order will be granted and the case will usually be continued for payments to be monitored.

This is a summary of the grounds under the Housing (Scotland) Act 1988 for seeking and obtaining possession for properties let as assured and short assured tenancies. For types of tenancy, see Types of tenancy (Scotland).

Some of the grounds required you to give the tenant written notice before the tenancy started, warning them that you may seek possession of your property using it. Grounds 2, 8, 11 to 14 and 16 must have been included in the tenancy agreement

Grounds on which a sheriff court must order possession (prior notice required)

GroundWhen you can use this ground

1:

You require the property for use as your or your spouse's principal home and you must have:

  • at some time before the start of the tenancy, occupied the property as your only or principal home (or at least one of you for joint landlords); or
  • given the tenant written notice before the start of the tenancy that possession might be recovered on this ground (the First-tier Tribunal may dispense with this requirement if it believes that it's just and fair to do so.)

This ground should be set out in a clause of the tenancy agreement.

2:

You have granted a mortgage over the property to a lender and that lender is now repossessing the property with a view to selling it, and:

  • either written notice was given to the tenant before the start of the tenancy that possession might be recovered on this ground; or
  • the First-tier Tribunal is satisfied that it is reasonable to dispense with the requirement of notice.

This ground must be set out in a clause of the tenancy agreement.

3:

You let the property under a tenancy for a specified period not exceeding eight months and:

  • it was used as a holiday home during the previous 12 months before the it was let; and
  • written notice was given to the tenant before the start of the tenancy that possession might be recovered on this ground.

This ground should be set out in a clause of the tenancy agreement.

4:

You let the property under a tenancy for a period of 12 months or less and:

  • it was let by an educational body to a student during the previous 12 months before it was let; and
  • written notice was given to the tenant before the start of the tenancy that possession might be recovered on this ground.

This ground should be set out in a clause of the tenancy agreement.

5:

Your property is held for the purpose of being available for a minister or any religious preacher to perform their work and is now required for occupation by them and:

  • the First-tier Tribunal is satisfied that the property is required for occupation by such a minister or religious preacher to perform their work; and
  • written notice was given to the tenant before the start of the tenancy that possession might be recovered on this ground.

This ground should be set out in a clause of the tenancy agreement if appropriate.

6:

You require possession of your property as you intend to demolish or reconstruct the whole, or a substantial part of it, or carry out substantially works to it and:

  • the works could have been done if the tenant agreed to changing the terms of the tenancy or a new tenancy of part of the property;
  • the intended works cannot (now) reasonably be carried out without the tenant giving up possession of it; and
  • you were the landlord when the tenancy started, or you were not the landlord when it started and you acquired the property but didn't pay or provide anything of value for it.

This ground should be set out in a clause of the tenancy agreement.

7:

A new tenant has inherited the tenancy of the property under a will or by intestacy (where no will or valid will is left) following the death of the original tenant and:

  • the property was not left to the current tenant under a will or intestacy of their former husband or wife; and
  • possession proceedings began within 12 months of the death of the original tenant.

This ground should be set out in a clause of the tenancy agreement.

8:

You are lawfully owed at least 3 months' rent from the tenant both:

  • at the date of service of the notice of proceedings for possession; and
  • at the hearing date.

This ground must be set out in a clause of the tenancy agreement.

Grounds on which a sheriff court may order possession

GroundWhen you can use this ground

9:

Suitable alternative accommodation is, or will be available, for the tenant when the order for possession takes effect.

This ground should be set out in a clause of the tenancy agreement.

10:

You require possession of your property and all of these conditions have been met:

  • you gave the tenant a notice to quit which has expired;
  • you started possession proceedings within 6 months of the expiry of the notice to quit;
  • the tenant is not entitled to remain in possession of the property as a new tenancy has not be given; and
  • the tenant is still in possession of all or part of the property.

This ground should be set out in a clause of the tenancy agreement.

11:

Even though there aren't any rent arrears on the date when proceedings for possession began, the tenant has persistently delayed paying the lawfully due rent.

This ground must be set out in a clause of the tenancy agreement.

12:

Some lawfully due rent is remains unpaid from the tenant:

  • at the date of service of the notice of proceedings for possession; and
  • when the possession proceedings start.

This ground must be set out in a clause of the tenancy agreement.

13:

Any obligation of the tenancy (other than one related to the payment of rent) has been broken or not performed by the tenant.

This ground must be set out in a clause of the tenancy agreement.

14:

The tenant (or any person living with them) or any sub-tenant has allowed or caused damage to the property or its common (shared) parts and the property's condition has deteriorated.

This ground must be set out in a clause of the tenancy agreement.

15:

The tenant, or a person living at the property, has either been:

  • convicted of using, or allowing the property to be used, for an illegal or immoral purpose; or
  • engaged in anti-social conduct or a series of anti-social conduct against anyone who lives or visits the property or people who are involved in lawful activity in the neighbourhood.

This ground should be set out in a clause of the tenancy agreement.

16:

The tenant (or any person living with them) has allowed or caused damage to the furniture provided for use under the tenancy and its condition has deteriorated.

This ground must be set out in a clause of the tenancy agreement.

17:

You require possession of your property from the tenant as:

  • you (or a previous landlord) let the property to them because they were employed by you (or the previous landlord); and
  • they are no longer employed.

This ground should be set out in a clause of the tenancy agreement if appropriate.

Grounds 10 and 16 require you to pay the tenant's reasonable removal costs.

Copyright © 2018 Epoq Group Ltd. All trademarks acknowledged, all rights reserved

This website is operated by Epoq Legal Ltd, company number 3707955, whose registered office is at 2 Imperial Place, Maxwell Road, Borehamwood, Hertfordshire, WD6 1JN. Epoq Legal Ltd will be authorised and regulated by the Solicitors Regulation Authority from 15 January 2019 (SRA number 645296).