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Eviction of common law tenants

If you have a common law tenancy, you still have some protection against eviction and your landlord will still have to serve you a notice to quit. You will probably be a common law tenant if you share your accommodation with your landlord, live in university halls of residence or are staying in temporary accommodation arranged by the council.

Am I a common law tenant?

If you rent from the council, a housing association or a letting agency, you are unlikely to be a common law tenant.

You are likely to be a common law tenant if you:

  • live with your landlord
  • are staying in halls of residence
  • are staying in temporary accommodation because you are homeless
  • rent from the police or fire brigade.

The section on common law tenancies explains more about common law rights and how common law tenancy agreements work. If you are unsure whether you are a common law tenant.

Can my landlord evict me as a common law tenant?

Before you can be evicted, your landlord must give you notice of at least four weeks. If you have been given the correct notice but do not leave when it runs out, your landlord can apply to the sheriff court for an order telling you to leave. When your landlord can ask you to leave:

At any time

If you have a written tenancy agreement it may tell you that your landlord can ask you to leave by giving you a written notice asking you to leave at any time. Your notice must be at least four weeks. If there is nothing in your tenancy agreement about this, your landlord can only ask you to leave:

  • because you have broken a condition of your tenancy agreement, or
  • at the end of the fixed period of your tenancy.

At the end of your tenancy

If you have been given a tenancy for a fixed period of time, for example if you are staying in halls of residence or temporary accommodation, your landlord can ask you to leave at the end of the fixed period. If the fixed period of your tenancy was for less than a year, your landlord must tell you at least four weeks before the fixed period ends that you will have to move out. If the fixed period was for a year or more, you must be given at least 40 days' notice.

If you are not given notice in time, your fixed period will renew itself for the same duration.

If a fixed period was not agreed when you moved in, it is usually assumed that your tenancy will last for one year from the date that you moved in or first paid rent. Your landlord can end the tenancy at the end of that year by giving you at least 40 days' notice.

Before the end of your tenancy, if you have broken a condition of your tenancy agreement

If you have a tenancy agreement it may tell you:

  • what you must and must not do, and
  • that if you fail to stick to this, you can be evicted.

If you break one of these conditions, for example, you stop paying your rent or damage the property, you could be evicted. Your landlord must still give you four weeks' notice.

What is a notice to quit/leave?

If your landlord wants you to leave, they should let you know in writing. This is your notice. Your notice should be given to you at least 28 days before your landlord wants you to leave, or 40 days before if your tenancy was for more than four months.

What should I do if my landlord gives me notice to quit?

Look for somewhere else to live

If your landlord has given you notice to quit, you should start looking for other accommodation. Remember that you will have to pay rent on your old property until your notice runs out, so try to find somewhere you can move into near that date, as you may have to pay rent for two homes if there is an overlap. If housing benefit is paying your rent, you may be able to get housing benefit for both properties, although not everyone is eligible.

Get advice

An adviser may be able to help you delay or even stop the eviction. They will also be able to discuss your housing options with you and tell you what help you may be entitled to from the council.

Make a homeless application to the council

If you can't find anywhere else to live, you can ask the council for help. The council has a duty to help people who are homeless. If you make a homeless application, the council should:

  • offer you advice and assistance
  • find you somewhere to stay in temporary accommodation
  • maybe offer you a permanent home, depending on your circumstances.

What happens if I don't leave at the end of my notice?

If you don't leave at the end of your notice, your landlord can apply for an order from the sheriff court telling you to leave:

  • If you are coming to the end of your tenancy and you have been given the correct notice, the sheriff will automatically grant the order.
  • If your landlord can prove that you have broken a condition of your tenancy agreement, the sheriff will automatically grant the order.

Warning: if you stay in your home after your notice has run out without very good reason, your landlord can ask the court to get you to pay damages, such as your landlord's legal fees.

What is a summons?

A summons is a letter from the sheriff court to tell you that your landlord has asked for a court order for you to be evicted. Before a court order can be granted, your case must be heard at the sheriff court.

The summons should include the date of the court hearing, which should be at least three weeks after you receive the summons.

Going to court

If you receive a summons and you can't sort things out with your landlord, you will have go to court. You have a right to defend yourself against eviction at court. 

Illegal eviction

If your landlord tries to force you to leave without giving you the correct notice or by harassing you and making your life such a misery you have no option but to leave, they will be committing a criminal offence. Find out more about illegal eviction

Eviction if you live with your landlord

If you live with your landlord then they won't need to get a court order before they can evict you. However, your landlord will still need to give you proper notice that they want you to leave, as outlined above.

If you pay rent to your husband, wife or partner, you will be in effect a common law tenant. However, depending on your situation, you may also have or be able to get occupancy rights, which will mean your partner won't be able to evict you.

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The important points

  • If you live with your landlord, stay in temporary accommodation arranged by the council because you are homeless, live in halls of residence, or rent from the police or fire brigade, you are likely to be a common law tenant. Most landlords will need to get a court order to evict their tenants.
  • Depending on the length of your tenancy agreement, your landlord must give you notice, of a minimum of 28 days.
  • If you share your home with your landlord but don't have any part of the accommodation that only you can access (called exclusive possession) your landlord does not need to get a court order to evict you.
  • If you are not given enough notice before the end of your tenancy, your fixed term tenancy automatically renews itself for the same length of time.

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