Ainsley McCabe | Senior Litigation Paralegal

Notice to End a Private Tenancy- the old and the new law

As of 1 December 2017, major changes have come into effect for Scotland’s 760,000 private renters. The Private Housing (Tenancies)(Scotland) Act 2016 has effected a major break with the system that operates in respect of private sector tenancies in Scotland. One such change is the notice the landlord requires serving on their tenant when seeking recovery of possession of the property.

Short Assured Tenancies- the ‘old law’

The new legislation is not retrospective- the Housing (Scotland) Act 1988 continues to apply to any tenancies before 1 December 2017.

The procedure when serving notice on the tenant 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

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.

1. 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.
2. 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.

Notably, rent arrears can fall under mandatory or discretionary. When the tenant is in three months or more rent arrears, this satisfies the mandatory ground 8. There is a risk in that the tenant can render the notice invalid by paying a sum of money to the landlord prior to the court date, which is sufficient to reduce the outstanding balance to a sum which is less than three month’s rent. Further, discretionary grounds 11 and 12 apply where the tenant has persistently delayed in paying rent and/ or outstanding rent due.

1. Notice to quit – as above, the landlord must have served a notice to quit;
2. 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.

Private Residential Tenancies- the ‘new law’

The new Private Housing (Tenancies) (Scotland) Act 2016 applies to all tenancies created on or after 1 December 2017.

Where previously a landlord could simply end the tenancy because it had come to an end, this will no longer be acceptable. The new legislation does not dictate an end date within the lease. The agreement will be left open ended and will end when a tenant wishes to leave or the landlord uses one, or more, of the 18 grounds for eviction. The grounds for repossession are largely the same. There are 18 grounds for eviction, both mandatory and discretionary.

One major change to note is to the rent arrears. The relevant ground for rent arrears can either be mandatory or discretionary depending on the circumstances. This ground only applies if the tenant has been in ‘rent arrears’ (has owed rent payments of any amount) for three or more months in a row. If the tenant still owes at least a month’s rent by the first day of the Tribunal hearing, the ground is mandatory and the Tribunal must issue an eviction order. If the tenant owes less than a month’s rent (or is no longer in arrears) 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. In deciding whether it is reasonable to evict, the Tribunal will consider whether the tenant being in arrears is due to a delay or failure in the payment of a relevant benefit.

If you decide to end the tenancy, you must serve your tenant a Notice to Leave document, which will tell them how long they have to move out. When you give your tenant notice to leave, you must tell them what eviction ground you are using. You can also provide any evidence you have to support the ground.

The amount of notice you have to give your tenant will depend on how long they’ve lived in the property and the grounds you’re using to evict them:

– You must give at least 28 days’ notice if they have lived in the property for six months or less, regardless of what eviction ground you are using.

– Regardless of how long the tenant has lived in the property, you must give at least 28 days’ notice if you are using one or more of the following eviction grounds:

o tenant is no longer occupying the let property
o tenant has breached a term(s) of tenancy agreement
o tenant is in rent arrears over three consecutive months on the date you apply to the Tribunal for an eviction order
o tenant has a relevant criminal conviction
o tenant has engaged in relevant antisocial behaviour
o tenant associates with a person who has a relevant conviction or has engaged in relevant antisocial behaviour

– You must give at least 84 days’ notice if they have lived in the property for more than six months, and you aren’t relying solely on any of the grounds listed above.

We can help

Jackson Boyd have a team of lawyers specialising in landlord tenant disputes. We are experienced in acting on behalf of both landlords and tenants and are happy to answer any questions in relation to the changes in the law and how it may impact you. Please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855

Ainsley McCabe

Ainsley McCabe

Personal Injury Team

“Those unfortunate enough to be involved in an accident often find themselves dealing with challenging circumstances in the aftermath. I enjoy assisting clients through what can be a difficult time in their lives, helping them to resolve their issues and look positively to the future.”

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