Non-tenant occupiers

It has been acknowledged in Scotland that it is possible to create a lesser right of occupation than a lease. In Scottish Residential Estates v Henderson [1] the occupants were given the right to occupy a cottage rent free, although responsibility for repairs, rates and services were undertaken and it was stated that it was to be used until the owners 'required possession of it'. The court held that it was 'unable to construe these terms as offering the defender a lease of the property' and concluded that no tenancy rights had ever been offered and accordingly there was no lease. However, other authority indicates that if the essential elements of a lease are present, the courts will generally construe that a lease exists. [2]

Advisers should be extremely wary of concluding that someone has the status of non-tenant occupier because the landlord did not intend to create a lease. It has been suggested that Henderson [3] cannot be taken as authority for the proposition that where an owner does not intend to grant a tenancy there will be no tenancy, because the facts 'were so peculiar that this case can have little practical application elsewhere.' [4]

Apart from basic protection from eviction non-tenant occupiers have few rights. They will be bound by the terms of their contractual agreement with their 'landlords'. In many cases, however, the agreement will be verbal and basic. It will give little protection.

The non-tenant occupier is required to give the 'landlord' reasonable notice if s/he wants to leave. [5] This notice could be verbal. How long 'reasonable notice' is, will depend upon the different facts of each situation. Realistically, this is probably a difficult obligation to enforce.

The landlord is required to give reasonable notice. [6] There is no requirement for this to be in writing, but best practice dictates that it should be in writing and be clear and unambiguous in its terms.

There is a general statutory rule that where an occupier occupies accommodation as a dwelling, s/he can only be forced to leave following a court or tribunal order. Common law also provides protection. [7]

In a case following a relationship breakdown, action was raised to evict a non-tenant occupier. It was held that the summary cause rule used in this case did not apply as the defender ‘originally obtained possession of the farmhouse with the permission, agreement, or licence of the pursuers’. The sheriff noted that 'lawful occupation' means occupation which has not been acquired 'through stealth or force'. [8]

It was also held that, based on the wording of the Housing (Scotland) Act 2014  and its associated commencement orders, jurisdiction for such cases had not been passed to the First Tier Tribunal and any such actions should continue to be raised at sheriff court under the appropriate rule. [9]

It should be kept in mind that there are likely to be poor prospects to defend action if raised correctly and at sheriff court there is a risk of a finding of expenses against the party who fails.

The protection against eviction without court action does not extend: [10]

• occupiers who share some accommodation with the person granting them permission to occupy. The person granting permission (or a member of their family) must have at all times occupied the accommodation (of which the shared bit forms part) as their only or principal home. The shared accommodation must be more substantial than a corridor, staircase or storage area

• situations where a temporary grant to remain in the property has been given to trespassers (or 'squatters')

• occupants of holiday accommodation

• occupants of hostel accommodation provided by local authorities, development corporations, urban development corporations, the Scottish Special Housing Association, and registered housing associations, although reasonable notice must still be given before the occupier can be evicted. [11]

Where there is any doubt, advisers should check the facts of the case carefully against the full criteria in the legislation.

The First-tier Tribunal has confirmed that a private residential tenancy ends when the tenant’s notice to leave expires. If they do not move out by the tenancy termination date and no request to continue the tenancy is made, they will become a non-tenant occupier.

In this instance, the former tenant no longer has any right or title to occupy the property, and can be evicted under section 23 of the Rent Scotland Act 1984. [12] The tribunal has the jurisdiction to evict in this instance. [13]