Law guide: Landlords

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Tenancy approaching termination date

Tenancy approaching termination date

Contents

This section covers how to seek possession for a short assured tenancy that has reached or is approaching its end, including:

  • When and how to serve a 'notice to quit'
  • When and how to serve a section 33 notice on the tenant (called this because it's served under section 33 of the Housing (Scotland) Act 1988)
  • How to apply for an eviction order (if the tenant refuses to leave)

Before a tenant is required to move out, they must be served with legal notices; any action for an order for eviction will fail if notices haven't been properly served.

When you can use this procedure

To seek possession using this procedure, the tenancy must be a short assured tenancy – for types of tenancy, see Types of tenancy (Scotland).

This procedure allows a landlord to serve notice on the tenant when the tenancy has reached or is approaching its end. There are two notices that you must give to the tenants that you can do at the same time – a notice to quit and a section 33 notice. If the tenant doesn't leave after a valid section 33 notice and notice to quit has been served, you can apply to the First-tier Tribunal for an order for possession to evict the tenant. The order for possession will only be made to take effect after the end of the tenancy.

Notice to quit

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 date
  • The property address
  • The date of expiry of the notice to quit i.e. the date of termination

The minimum notice period is 40 days, which must tie in with the end date (also called the ish date) of the tenancy. It is normal to serve the notice to quit along with the s. 33 notice thus giving two months' notice.

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.

Section 33 notice

The section 33 notice must give the tenant at least 2 months' advance notice of the date the tenancy ends (which is stated in the tenancy agreement).

Serving a section 33 notice and notice to quit

You can serve a section 33 notice on the tenant at any time after the tenancy has started, to confirm that you intend to regain possession of the property when the tenancy agreement ends. You can also serve the notice after the end of the initial period of the tenancy. You can't serve a section 33 notice before the tenancy start date – it will be invalid.

You can serve the notice to quit at the same time as you serve a section 33 notice.

You can't deliver the section 33 notice and notice to quit by ordinary post or personally by hand – these aren't valid methods of service. For the notices to be validly served, they must be served by:

  • recorded delivery post; or
  • sheriff officers.

If the tenant doesn't leave the property at the end of the notice period stated in the section 33 notice, you can apply to the First-tier Tribunal for an eviction order. If you get an order and the tenant still refuses to leave, you'll have to enforce it.

You mustn't harass the tenant in any way. This is a criminal offence. You could incur severe penalties.

Length of notice you must give

For a section 33 notice, you must give at least 2 months' notice before the date that the tenancy ends.

For a notice to quit, it must be at least 40 days before the date the tenancy ends.

You must take care to correctly calculate the date you give in the notices of when the tenancy will come to an end, particularly if you're intending to give the notices:

  • After the initial period of the tenancy agreement ends
  • Just before 2 months/40 days of the date the tenancy agreement ends
  • Just after 2 months/40 days of the date the tenancy agreement ends

For service by recorded delivery, the day after posting is the first day of the 2-month period. You must make sure that the date given in the notice of when the tenancy will end is at least 2 months and one day from that date. The same applies when serving a notice to quit, you must make sure that the date given in the notice of when the tenancy will end is at least 40 plus one day from that date.

For service by sheriff officers, the date of service is the first day of the 2-month or 40-day period. You must make sure that the date of termination in the tenancy agreement is at least 2 months (or for a notice to quit, 40 and one day) from that date. 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 2-month/40-day period before you serve the notice. Or you could build a few extra days into the notice period to allow enough time for service of the notices.

Applying for an order for possession

If the tenant doesn't leave by the end of the period stated in the section 33 notice served on them, you must apply to the First-tier Tribunal for an eviction order before the tenant can be lawfully removed from the property.

To start court proceedings you should apply to the 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)