Rent arrears are a real concern for many landlords across the UK. Debt is a reality for every type of business, but is a particular problem for landlords letting property in the private-rented sector. Unlike almost any other service provider, landlords are unable to immediately terminate a contract and stop a service with their client if payment if is not received. At Jackson Boyd we have a specialist dispute resolution department, with lawyers who are experienced in acting for both landlords and tenants.
We understand that it is often difficult for landlords to reach agreement with their tenants when the lease has come to an end (either by breach or otherwise) and you need to get your property back. The guide below provides some helpful tips regarding the eviction process in relation to Short Assured Tenancies.
1. The first step is to ascertain what type of lease it is.
Short assured tenancies are always given for a fixed length of time of no less than six months. In order for a tenancy to be a Short Assured Tenancy, the landlord must have served an AT5 Notice in terms of Section 32 of the Housing (Scotland) Act 1988. This notice must be served before the creation of the tenancy agreement (e.g. before the lease is signed). If the notice has not been served the landlord may find that they have inadvertently created a different type of tenancy. If you have a Short Assured Tenancy, the minimum initial period of the tenancy must be no less than 6 months. After the initial period has elapsed, there is no need to renew the agreement as it should continue by ‘tacit relocation’. This means that if the lease does not explicitly state how it will be renewed, it will renew for the same duration as the original let or for one year, whichever period is shorter. It is more likely however, that the lease will contain a clause that states that after the initial period, the lease will continue on a month to month basis.
2. The second step is to ensure you serve the correct notices.
The procedure is different depending on whether you wish to evict your tenant during the tenancy or at the end of its contractual period.
(1) At the end of the tenancy
If an AT5 notice has been served prior to the commencement of the tenancy then the landlord does not need to rely on there being a ground for possession of the property. The landlord can rely on the fact that the Short Assured Tenancy has come to an end so long as the following notices have been served correctly.
- Notice to quit – the length of notice to be given depends on how long the tenancy is for and depends on what the tenancy agreement states but the length of the relevant notice period will either be 40 days or 2 months. The end of the notice period must coincide with the “end” date of the lease and must clearly state when the period of notice will expire.
- Section 33 Notice – the landlord must also serve a “Section 33” notice stating that he/she requires possession of the house. This notice can be served at any point after the Notice to Quit but must expire after the end of the tenancy (i.e. after the notice period in the notice to quit expires). The notice period under Section 33 is always two months unless a longer period has been agreed in the lease.
(2) If tenant is in breach of tenancy agreement and landlord wants to terminate early:-
If a tenant with a Short Assured Tenancy breaches any of the conditions of the agreement, the landlord may initiate proceedings to recover possession at any time and does not have to base the action around the end of the contractual period. If the tenancy has not come to an end, the landlord can only seek recovery of possession on the basis of one of 17 statutory grounds. Grounds 1-8 are mandatory grounds: that is, if they are proved, a Sheriff must grant an order for possession. Grounds 9-17 are discretionary grounds: that is, even if they are proved, a Sheriff has discretion to grant the other and will only do so if it is reasonable to do so.
- Notice to quit – as above, the landlord must have served a notice to quit;
- Notice of proceedings – you must serve a Form AT6 – A Notice of Intention to Raise Proceedings. In this, you must lay out the grounds on which you seek to evict the tenant. This can be sent at the same time as the Notice to Quit, or at a later date. If the two notices are sent at the same time, the notice periods will run at the same time. The notice, in terms of an AT6 form, is the amount of time that has to pass before the landlord can start proceedings at the sheriff court. It is not the length of time that a tenant has to leave the property.
In all cases, before raising a court action, the landlord has a duty to send a notice (Section 11 Notice) to the local authority to advise them that there may be a risk of impending homelessness.
3. Raising a court action
Once the relevant notice periods have expired, if agreement cannot be reached with the tenant for their removal from the property, then the landlord will require to raise an action to ask the court to grant an order for possession of the property. It should be noted that if there is any question regarding the tenant’s removal from the property, the landlord should ask the court to grant an order as otherwise they could face a claim for unlawful eviction.
All court actions for recovery of possession must be raised under the Summary Cause Rules. In all other types of action, the Summary Cause Rules have now been replaced by the Simple Procedure Process. However, this does not apply to evictions. A new set of rules are due to come into force in the near future under the Simple Procedure Rules but until those are in force, the Summary Cause Rules still apply to actions for recovery of possession.
Once the summons (court papers) have been sent to court, the court will grant warrant for them to be served on the tenant. The warrant will note two dates (i) the last date for response and (ii) the date of the first hearing.
All actions for recovery of possession must call in court even if the tenant does not respond to the action. At the first hearing, the Sheriff will consider whether to grant the order. If the order is granted, the landlord will not be able to take any steps to evict the tenant until the court’s order has been received. The court will not be able to issue the order until 28 days have passed to allow the tenant an opportunity to appeal the court’s decision. On receipt of the order, the landlord should instruct Sheriff Officers to serve a charge for removal on the tenant, giving them notice that they must remove within 14 days failing which they can be forceably removed from the property.
This guide is for information purposes only and is not to be relied upon as advice. We would always recommend that independent legal advice is obtained.
Should you have any questions please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.
