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Coronavirus update: as a result of the pandemic, there are temporary extended notice requirements in place in Scotland. See Coronavirus (COVID-19) for more information.
If the tenant has failed to pay rent after you've made requests for them to do so, you can serve legal notices.
You must serve the following legal notice: Notice to Leave (requiring your tenant's removal from the property by a particular date as a result of rent arrears having accrued);
You must give the tenant at least 28 days' notice of the date to leave the property.
If you and your tenant agreed at the start of the tenancy to communicate by email on all matters relating to the tenancy this would now include serving the Notice to Leave by email. If you did not agree to communicate by email the Notice to Leave can be sent by recorded delivery post or Sheriff Officer.
Length of notice you must give
You must give at least 28 days' notice. You must take care to correctly calculate the notice period:
If the tenant doesn't move out of the property by the end of the period stated in the notice, or doesn't pay the arrears and reach agreement with you that they can stay, you must apply to the Tribunal for an eviction order before the tenant can be lawfully removed from the property. This may be the best way to control your losses and regain possession of the property. You will require to sue the tenant separately for recovery of the rent arrears in the Sheriff Court.
To start proceedings you should apply to the First-tier Tribunal. The administration centre is in Glasgow, but if a hearing is required, the Tribunal will arrange it as close as possible to the property address. See The First-tier Tribunal for Scotland (Housing and Property Chamber)
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.
Under the 2016 Act the ground for rent arrears is mandatory or discretionary.
This ground is mandatory if:
If the Tribunal is satisfied on these points it must issue an eviction order.
This ground is discretionary if:
If the Tribunal is satisfied on these points it must then consider if it is right on this basis to issue an eviction order - in this case the Tribunal can look at many things to decide whether it is right to evict, including whether the reason for the tenant not paying the rent is a delay or failure in the payment to the tenant of some benefits, including housing benefit or universal credit.
When relying on discretionary grounds to get an eviction order, you'll need to satisfy the Tribunal that the criteria for the grounds have been met and that it's reasonable in the circumstances to make an order for possession. It can be difficult to persuade the Tribunal; there's no guarantee that you'll get possession of your property when relying on the discretionary grounds for possession.
The Tribunal can take into account a large range of factors including:
You must not evict the tenant yourself under any circumstances.
If you've obtained an eviction order and the tenant does not vacate voluntarily, you can instruct sheriff officers to arrange an eviction. The sheriff officers will need to have the eviction order from you and will inform the tenants of a date when an eviction will take place. On that date, the sheriff officers will attend with a locksmith and will change the locks. You don't need to attend.
Be aware that if the tenant refuses to leave after an eviction order has been granted, and if you ask them to pay rent, the Tribunal could rule that a new tenancy has arisen. The tenant will still be liable to pay you damages for continued occupation of the property. You should seek legal advice in these circumstances.
If the tenant has failed to pay rent after you've made requests for them to do so, you can serve legal notices.
You must serve the following legal notices on the tenant; you're recommended to serve these notices together:
You must give the tenant at least 40 days' notice of the date to leave the property.
You can't deliver the notices by ordinary post or personally by hand – these aren't valid methods of service. For the notices to be valid, they must be served by:
The notice to quit needs to be written, but it does not otherwise need to be in a set form. It should be addressed to the tenant and contain the following information:
The minimum notice period is 40 days, which must tie in with the end date (also called the ish date) of the tenancy.
The notice to quit must also contain the following information:
1. Even after the notice to quit has run out, before the tenant can lawfully be evicted, the landlord must get an order for possession from the court.
2. If a landlord issues a notice to quit but does not seek to gain possession of the house in question the contractual assured tenancy which has been terminated will be replaced by a statutory assured tenancy. In such circumstances the landlord may propose new terms for the tenancy and may seek an adjustment in rent at annual intervals thereafter.
3. If a tenant does not know what kind of tenancy he has or is otherwise unsure of his rights he can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid legislation. A tenant can also seek help from a Citizens Advice Bureau or Housing Advisory Centre.
You must give at least 40 days' notice; you must take care to correctly calculate the minimum 40-day notice period:
You may need to find out when the sheriff officers will be able to serve the notices; this will help you to work out the 40-day notice period before you serve the notices. Or you could build a few extra days into the notice period to allow enough time for service of the notices.
If the tenant doesn't move out of the property by the end of the period stated in the notices, or doesn't pay the arrears and reach agreement with you that they can stay, you may apply to the First-tier Tribunal for an eviction order to evict the tenant. This may be the best way to control your losses and regain possession of the property. You will require to sue the tenant separately for recovery of the rent arrears in the Sheriff Court.
To start proceedings you should apply to the First-tier Tribunal. The administration centre is in Glasgow, but if a hearing is required the Tribunal will arrange it as close as possible to the property address. See The First-tier Tribunal for Scotland (Housing and Property Chamber)
What decision the Tribunal will make will depend largely on whether you're relying on mandatory or discretionary grounds for possession. If you're relying on:
To qualify for a mandatory possession order, at least 3 months' rent lawfully due by the tenant must be in arrears, both at the date of the service of the Notice of Intention to Raise Proceedings under Section 19 of the Housing (Scotland) Act 1988 and at the date of the Tribunal hearing.
If you don't satisfy the above criteria by the hearing date then you may rely on the discretionary grounds for possession.
You may rely on discretionary grounds for possession if one of the following criteria is fulfilled:
When relying on discretionary grounds to get an eviction order, you'll need to satisfy the Tribunal that the criteria for the grounds have been met and that it's reasonable in the circumstances to make an order for possession. It can be difficult to persuade the Tribunal; there's no guarantee that you'll get possession of your property when relying on the discretionary grounds for possession.
The Tribunal can take into account a large range of factors including:
You must not evict the tenant yourself under any circumstances.
If you've obtained an eviction order and the tenants don't vacate voluntarily, you can instruct sheriff officers to arrange an eviction. The sheriff officers will need to have the eviction order from you and will inform the tenants of a date when an eviction will take place. On that date, the sheriff officers will attend with a locksmith and will change the locks. You don't need to attend.
Be aware that if the tenant refuses to leave after an eviction order has been granted, and if you ask them to pay rent, the Tribunal could rule that a new tenancy has arisen. The tenant will still be liable to pay you damages for continued occupation of the property. You should seek legal advice in these circumstances.