The landlord wants possession of assured tenancy

There are specific steps that a landlord must take to bring an assured tenancy to an end.

This content applies to Scotland

Coronavirus (COVID-19) and changes to eviction procedure

The Coronavirus (Scotland) Act 2020 has the effect of temporarily changing

  • the period of notice required

in addition

  • all grounds used in eviction actions in the private rented sector become discretionary

These changes apply until 31 March 2022.

You can use the table Assured and short assured tenancies: Notice periods to see whether changes apply.

Order for possession

A landlord cannot end an assured tenancy without first obtaining an order for possession. [1] The Housing (Scotland) Act 1988 ] The Housing (Scotland) Act 1988 restricts the circumstances under which the tribunal may grant an order for possession over an assured tenancy. They are called 'grounds of possession'.

The Equality Act

In certain circumstances, disabled tenants may be able to defend possession proceedings using the Equality Act 2010. For more information, see the section on the Equality Act.

Is a Notice to quit needed

It is important to note that during the contractual assured tenancy the landlord can only use grounds 2, 8 , 11-14 and 16,17. In order to be able to use these grounds during the tenancy, the landlord must have indicated in the tenancy contract that these grounds might be used to gain possession. [2] If the tenancy contract does not stipulate this, then the landlord must serve a notice to quit (NTQ), which must coincide with the 'ish' in order to create a statutory tenancy before commencing repossession proceedings.

The NTQ must contain specific prescribed information. For example (from 6th March 2019) [3]

'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 First Tier Tribunal for Scotland Housing and Property Chamber.'

If the tenancy is longer than four months, the minimum notice for a NTQ is 40 days. [4] If the tenancy is for four months or less, the NTQ must be at least one-third of this period [5] There is potential for a landlord include a clause in the lease which may lower this notice period however it cannot be reduced further than the statutory minimum of 28 days. [6]

The period of notice for a NTQ is in addition to the statutory amount of notice of proceedings that might be required under individual grounds for possession.

Irritancy clauses

Occasionally, a landlord may seek to use an irritancy clause to circumvent the need for a notice to quit - for example, a clause stating that the lease will be immediately terminated if a condition in it is broken. While this is common practice in agricultural and commercial leases, its legal validity in the context of residential leases is doubtful. Should an adviser encounter such a scenario they should seek further legal advice.

Mandatory or discretionary grounds

If a ground is mandatory it means that the tribunal must give the landlord possession if it believes the ground is satisfied.

The grounds are (usually) divided into eight mandatory grounds, where the tribunal has no discretion to refuse possession if the ground is proved, and nine discretionary grounds, where the tribunal should consider whether it is reasonable to grant possession to the landlord even if the ground is proved.

However, Schedule 1 of the Coronavirus (Scotland) Act 2020 temporarily changes this. In all cases where notice was served on or after 7 April 2020 all grounds are discretionary. This means whilst this Act is in force, for all grounds, the tribunal must consider whether it is reasonable to issue an eviction order. [7]

There may be situations where the landlord, through the tenancy agreement, has sought to limit the grounds on which they can recover possession of the tenancy, although this is likely to be an uncommon practice.

Defending discretionary grounds

If a ground is discretionary it means that the court has the choice over whether to grant the landlord possession. In deciding whether to grant possession, the tribunal will take into account every factor that is relevant to the tenant and the case as a whole. [8]

In addition to proving the ground, the landlord must also satisfy the tribunal that it is reasonable to grant the order for possession. [9] Although the onus in law is on the landlord to prove reasonableness, often simply stating the facts of the case will be enough. In practice, the burden then shifts to the tenant to persuade the tribunal that it is not reasonable to grant the order, despite the fact that the ground is established.[10] The more serious the situation that establishes the ground of possession, the less the need to also demonstrate the reasonableness of granting possession.

Notice periods

Before raising proceedings, a landlord must give the tenant notice by serving an AT6 (sometimes known as a section 19 notice).

Usually there are two different periods of notice dependant on which ground is being used: [11]

  • Two months' notice is required in the case of grounds 1, 2, 5, 6, 7, 9 and 17.

  • Two weeks' notice is required in the case of grounds 3, 4, 8, 10, 11, 12, 13, 14, 15 and 16.

However, Schedule 1 of the Coronavirus (Scotland) Act 2020 has the effect of making a temporary change to the notice periods: [12]

  • For notices served on or after 7 April 2020 2020 the notice period is two months for ground 9, three months for ground 1 and ground 15, and six months for all other grounds.

  • Where notices are served on or after 3 October 2020, the notice periods for the following grounds change to: 28 days for ground 15, two months for ground 9, three months for ground 1 and six months for all other grounds. [13]

The landlord has six months to begin proceedings from the date when they are able to do so. If the landlord does not begin proceedings during this time, they must start again with the service of a new notice. [14]

The length of notice required, and relevant dates are listed under each ground in the sections below.

You can also download the document Assured and short assured tenancies: Notice Periods

For more details on possession proceedings please see the section Repossession process for assured tenancies.

Ground 1: owner occupation

Notice required:

  • If notice served before 7 April 2020 the notice period is two months.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, three months notice is required

Mandatory ground but due to the Coronavirus Act the ground is discretionary if notice served on or after 7 April 2020.

In order to use this ground, the landlord must have served prior notice in writing on the tenant stating that this ground may be used in the future. The notice does not need to be in a particular form but must be served before the tenancy was entered into. The tribunal has the discretion to ignore this rule if they think it is reasonable to do so. [15]

If the landlord and tenant enter into a new tenancy without a break in the tenant's occupation, no new notice will be required. The Scottish test of 'reasonableness' in deciding whether to dispense with the requirement of notice is different from the 'just and equitable' test in England and Wales. There is no Scottish authority on the question of 'reasonableness' in this context. However, English case law on the 'just and equitable' test may be of some assistance. In Boyle v Verral [16] a landlord rented out his second home but later required to occupy it for work purposes. In deciding that the notice requirement could be dispensed with, the court considered that a relevant factor was that the landlord had originally attempted to create an assured shorthold tenancy but had failed to fulfil its notice requirements. The persistent late payment of rent was also of relevance, as was the fact that the tenants did not require to live in that particular area of London.

If oral notice was given before the assured tenancy began, and this can be proved, this will strengthen the case for dispensing with the need for written notice.

There are two situations in which the landlord can recover possession under this ground:

  • If the landlord used to occupy the property as their only or principal home at any time before the assured tenancy was granted, they will be entitled to recover possession.

  • If the landlord or the landlord's spouse or civil partner requires the property as their only or principal home (despite the fact that they have never lived in the property before), they will be entitled to recover possession, providing the landlord did not purchase the property after the assured tenancy had begun. The term 'require' does not mean that the landlord has to prove that they 'need' the property back. To require a property as a principal home demands no more than a genuine desire and an intention to occupy it immediately. [17]

Advisers should be wary of landlords asserting that they require the property back for their own use when the real reason is to sell it. However, it is perfectly acceptable for a landlord to require a property as their only or principal home until they are able to sell it. This was confirmed when a landlord, after recovering possession under this ground, lived in the property for three weeks, put it on the market and moved out. The Court of Appeal held that the deciding factor was that at the time of the original hearing (for recovery of possession), the landlord had a genuine desire and intention to occupy the accommodation. [18]

Ground 2: mortgage default

Notice required:

  • If notice served before 7 April 2020 the notice period is two months.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Mandatory ground but due to the Coronavirus Act the ground is discretionary if notice served on or after 7 April 2020.

In order to use this ground, the tenant must have been given notice no later than the beginning of the tenancy that possession might be obtained on this ground. The tribunal may dispense with this requirement if they think it is reasonable to do so. For example, a tribunal may dispense with the requirement for notice if the landlord leased the accommodation without the written consent of the lender. [19]

This ground covers the situation where the landlord has defaulted on a loan secured against the property before the beginning of the tenancy and where the lender is entitled to sell the property to pay off the debt. In such a case possession will be granted.

Where a lender is successful in an action against a defaulting landlord only to find that an unauthorised tenancy exists, the lender has two options. They can raise an action to have the unlawful tenancy reduced (ie the purported contract is 'ripped up' by the courts); or it can raise an action for recovery of possession under this ground. In either case, advisers should note that a court order is required before the tenant must vacate, which should buy some time for the tenant. [20] If the lender is taking enforcement the tenant has to be notified of this. For more information, please see the section on mortgage arrears - court action.

Ground 3: off-season holiday lets

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Mandatory ground but due to the Coronavirus Act the ground is discretionary if notice served on or after 7 April 2020.

If this ground is to be used, then notice in writing before the tenancy begins is essential. The tribunal cannot dispense with this requirement.

This ground can be used if the property is let for eight months or less and it has been occupied as holiday accommodation at some stage during the year preceding the beginning of the assured tenancy.

The eight month maximum let can be extended, provided that the lease allows the landlord to end the contract before the eight month period has passed and the landlord ends the contract. So, for example, a one-year lease that provides that it can be prematurely terminated at one month's notice from the landlord will fall within the terms of this ground, so long as it is in fact brought to an end before eight months is up.

Ground 4: vacation lets of student accommodation

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Mandatory ground but due to the Coronavirus Act the ground is discretionary if notice served on or after 7 April 2020.

If this ground is to be used, then notice in writing before the tenancy begins is essential. The tribunal cannot dispense with this requirement.

This ground deals with student accommodation let temporarily to non-students. In order for the ground to be used, the property must have been let as a student tenancy from the educational body at some point within the year before the tenancy. The assured tenancy must be of no more than 12 months' duration. If the tenancy is longer, there must be provision for the landlord to end the tenancy within 12 months and they must use the ground within this period.

Ground 5: minister/lay missionary property

Notice required:

  • If notice served before 7 April 2020 the notice period is two months.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Mandatory ground but due to the Coronavirus Act the ground is discretionary if notice served on or after 7 April 2020.

If this ground is to be used, then notice in writing before the tenancy begins is essential. The tribunal cannot dispense with this requirement.

Where a house is intended as tied accommodation for a minister or full-time lay missionary, the religious organisation may recover possession. The tribunal must also be satisfied that the property is required for use as such tied accommodation and not for any other reason.

Ground 6: redevelopment

Notice required:

  • If notice served before 7 April 2020 the notice period is two months.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Mandatory ground but due to the Coronavirus Act the ground is discretionary if notice served on or after 7 April 2020.

If a landlord intends to do substantial work on the building of which the tenant's accommodation forms a part, and the tenant hampers the work, this ground may be used. In order to use this ground the landlord must have owned the property before the tenancy was granted. Alternatively, if the property was obtained during the tenancy, the landlord must have got it for free.

The landlord must prove that the work cannot reasonably be carried out without the tenant giving up possession of their accommodation, or alternatively, that the work cannot be carried out because the tenant will not accept a variation in the terms of her/his tenancy, or will not accept a reduction in the extent of her existing accommodation.

It has been held that the existence of a repairing standard enforcement order (RSEO) does not prevent a landlord from having the requisite intention to demolish a building, however the tribunal are also entitled to keep the RSEO in place until such time as the property is demolished (in order to protect against a landlord potentially changing their mind.) [21]

A tenant removed under this ground is entitled to reasonable removal expenses, from the landlord. If the tenant and landlord cannot agree as to what is a reasonable amount, the tribunal can determine this. [22]

Ground 7: tenancy inherited under a will or intestacy

Notice required:

  • If notice served before 7 April 2020 the notice period is two months.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Mandatory ground but due to the Coronavirus Act the ground is discretionary if notice served on or after 7 April 2020.

If an assured tenant dies and the right in the tenancy passes to another person, the landlord may repossess under this ground, so long as they do so within one year of the death (or of finding out about the death). Because the rights have passed on death, the tenancy continues, even though the identity of the tenant has changed. The landlord can accept rent from the new tenant without creating a fresh tenancy. All notices would be served on the new tenant.

An order for possession will not be made under this ground if the tenancy was succeeded to by the tenant's spouse, civil partner or cohabitee, unless the deceased tenant had gained the tenancy by succession. [23]

Ground 8: three months' rent arrears

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Mandatory ground but due to the Coronavirus Act the ground is discretionary if notice served on or after 7 April 2020.

In addition, in some cases, when considering whether it reasonable to grant an eviction order, the tribunal must consider the extent to which the landlord has complied with the pre-action requirements. This is required:

  • where either some or all of the arrears accrued after 7 April 2020 AND 

  • the landlord applies to the tribunal on or after 6 October 2020 (This is the date the application is received by the tribunal), 

See the page Private sector rent arrears pre-action requirements. This page also includes practical steps for advisers to take when dealing with private sector rent arrears.

If the tenant is three months in rent arrears both at the time the AT6 (section 19 notice) is served, and at the date of the court hearing, the landlord is/may be entitled to possession. The rent must have been 'lawfully due'. If the tenant has withheld rent because the landlord has not performed their own obligations (for example, repairs obligations), it will be possible to argue that the rent was not 'lawfully due'. If the tenant pays enough of the outstanding rent before the court hearing to bring the outstanding amount to below a full three months, this ground will no longer apply.

It is possible that this ground may not be satisfied where the arrears are the result of problems with Housing Benefit payments. If the rent payment is outstanding as a result of delay or failure to pay Housing Benefit, provided the delay or failure was not the fault of the tenant, the tribunal shall not make an order unless it would be reasonable to do so. [24] This allows a tribunal the discretion not to make an order where otherwise it would have been mandatory to do so. For more information, please see the section on preventing eviction in rent arrears cases.

Ground 9: suitable alternative accommodation available to tenant

Notice required:

  • The Coronavirus Act does not affect the period of notice for this ground

  • Regardless of when notice is served two months notice is required

Discretionary ground.

If suitable alternative accommodation is available for the tenant, or will be available when the court order takes effect, possession may be granted. Broadly, 'suitable' means accommodation of a similar quality regarding both the security of tenure offered and also its appropriateness to the needs of the family. [25]

A tenant removed under this ground is entitled to reasonable removal expenses from the landlord. If the tenant and landlord cannot agree as to what is a reasonable amount, the tribunal can determine this. [26]

Ground 10: tenant served notice to quit but did not leave

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Discretionary ground.

Where an assured tenant gave the landlord a notice to quit, but did not leave, the landlord may pursue recovery of possession under this ground. This must be done within six months of the expiry of the notice to quit.

Ground 11: persistent delay in paying rent

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Discretionary ground.

If the tenant has persistently delayed paying rent, the landlord may attempt to win back possession under this ground. The landlord may proceed even if the tenant has paid up by the time possession proceedings begin, although in practice this would make the job of persuading the tribunal that it is reasonable to grant the order much more difficult.

It is common for rent payments to be late due to delays in Housing Benefit payments. In considering whether or not it is reasonable to make an order under this ground, the tribunal must take account of any delay or failure in payment of rent caused by problems with Housing Benefit payments. [27]

In addition, in some cases, when considering whether it reasonable to grant an eviction order, the tribunal must consider the extent to which the landlord has complied with the pre-action requirements. This is required:

  • where either some or all of the arrears accrued after 7 April 2020 AND 

  • the landlord applies to the tribunal on or after 6 October 2020 (This is the date the application is received by the tribunal), 

See the page Private sector rent arrears pre-action requirements. This page also includes practical steps for advisers to take when dealing with private sector rent arrears.

Ground 12: some rent unpaid

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Discretionary ground.

Where rent is unpaid both on the day when the section 19 notice was issued, and on the day when possession proceedings were begun, this ground applies. The requirement to take account of delays or failures in payment of Housing Benefit outlined in ground 11 also applies to ground 12. [28]

In addition, in some cases, when considering whether it reasonable to grant an eviction order, the tribunal must consider the extent to which the landlord has complied with the pre-action requirements. This is required:

  • where either some or all of the arrears accrued after 7 April 2020 AND 

  • the landlord applies to the tribunal on or after 6 October 2020 (This is the date the application is received by the tribunal), 

See the page Private sector rent arrears pre-action requirements. This page also includes practical steps for advisers to take when dealing with private sector rent arrears.

Ground 13: breach of tenancy condition

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Discretionary ground.

Where a tenancy condition (other than payment of rent) has been broken, the landlord may rely on this ground. This generally refers to situations when a landlord adopts extra, specific, conditions relating to the behaviour of the tenant that should also relate to the use of the house.

Ground 14: deterioration in the condition of the house or common parts

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Discretionary ground.

This applies where the condition of the house has deteriorated because of the neglect or behaviour of the tenant, a member of their family or a lodger or subtenant. Where a lodger or subtenant caused the deterioration, the tenant must have failed to take reasonable steps to remove the guilty party.

For this ground, 'common parts' refers to any part of the building that includes the property let to the tenant, and to any other premises that the tenant is entitled to use in common with the occupiers of other properties in which the landlord has an interest.

Ground 15: nuisance or annoyance

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020 but before 3 October 2020, three months notice is required

  • Due to a change to the Coronavirus Act if notice served on or after 3 October 2020 28 days notice is required.

Discretionary ground.

This applies to the tenant and anyone living or lodging with her/him. The ground will be satisfied if any of these people is guilty of causing a nuisance or annoyance to neighbours, or has been convicted of using the accommodation (or allowing it to be used) for immoral or illegal purposes.

This ground can apply to all kinds of behaviour, for example noise nuisance. A single action is capable of establishing this ground, [29] although for this to be the case it is likely to have to be of a very serious nature.

There is scope for arguing that it is not reasonable to grant an order for possession when the incident complained of is isolated, particularly where the tenant has shown good behaviour between the incident and the hearing. [30]

It is possible for a possession order to be granted despite the fact that the tenant was absent from the house and had no control over the nuisance. [31] There is scope, however, for arguing that under these circumstances it is not reasonable to grant the order. [32]

A disabled tenant whose antisocial behaviour has happened as a result of their disability may be able to use the Equality Act 2010 to defend possession proceedings, although the landlord can show that discrimination was justified if the possession action was necessary to avoid harm occurring to others, eg neighbours. For more information, see the section on the Equality Act.

Ground 16: deterioration in the condition of the furniture

Notice required:

  • If notice served before 7 April 2020 the notice period is two weeks.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

Discretionary ground.

This applies where the condition of the furniture supplied with the accommodation has deteriorated because of the neglect or behaviour of the tenant, a member of her/his family, or a lodger or subtenant. Where a lodger or subtenant caused the deterioration, the tenant must have failed to take reasonable steps to remove the guilty party.

Ground 17: ex-employees of the landlord

Notice required:

  • If notice served before 7 April 2020 the notice period is two months.

  • Due to the Coronavirus Act if notice served on or after 7 April 2020, six months notice is required

This ground relates to the situation where the tenant is an ex-employee of the landlord and was granted the tenancy as a result of their employment. There is no requirement to prove that the landlord needs the accommodation for someone else, although this may form part of the reasonableness argument. Special rules apply to agricultural workers.

Last updated: 25 March 2021

Footnotes

  • [1]

    s.16(2) Housing (Scotland) Act 1988

  • [2]

    s.18(6) Housing (Scotland) Act 1988 as amended by s.100 Antisocial Behaviour etc. (Scotland) Act 2004; see also Evelyn Gdula and FTTHPC and Jeanne Rooney [2019] UT 44

  • [3]

    The Assured Tenancies (Notices to Quit Prescribed Information) (Scotland) Regulations SI 1988/2067, please note: these were amended by reg.3 The First-tier Tribunal for Scotland Housing and Property Chamber (Incidental Provisions) Regulations 2019 SSI 2019/5, to substitute the word 'court' for ' the First Tier Tribunal for Scotland Housing and Property Chamber'

  • [4]

    Signet Group plc v C & J Clark Retail Properties Ltd 1996 S.L.T.

  • [5]

    s.38 Sheriff Courts (Scotland) Act 1907 as amended

  • [6]

    s.112(1) Rent (Scotland) Act 1984

  • [7]

    Para. 3 Sch.1 Coronavirus (Scotland) Act 2020

  • [8]

    Minchburn Ltd v Fernandez [1986] 2 EGLR 103

  • [9]

    s.18(4) Housing (Scotland) Act 1988

  • [10]

    City of Glasgow District Council v Erhaiganoma [1993] SCOLAG 89; 1993 S.C.L.R. 592

  • [11]

    s.19(3)(b) Housing (Scotland) Act 1988

  • [12]

    s.19 Housing (Scotland) Act 1988, as amended by para.4 sch.1 Coronavirus (Scotland) Act 2020

  • [13]

    s.2 Coronavirus (Scotland) Act (Eviction from Dwelling-houses (Notice Periods) Modification Regulations 2020 SSI 2020/270

  • [14]

    s.19(7) Housing (Scotland0 Act 1988

  • [15]

    See Boyle v Verrall [1997] 04 EG 145 for a recent consideration of when it is reasonable to ignore this rule

  • [16]

    Boyle v Verrall [1997] 1 EGLR 25

  • [17]

    Kennealy v Dunne [1977] QB 839

  • [18]

    Lipton v Whitworth [1993] 26 HLR 293

  • [19]

    See Tamroui v Clydesdale Bank plc [1997] SLT (Sh Ct) 20

  • [20]

    For a full discussion, see O'Carroll, 'When Your Landlord Doesn't Pay the Mortgage', SCOLAG, (1994) pp.138-41

  • [21]

    Charlton v The Josephine Marshall Trust [2020] CSIH 11

  • [22]

    s.22 Housing (Scotland) Act 1988

  • [23]

    s.31(3) Housing (Scotland) Act 1988 as amended by sch.28 para 56(3) Civil Partnership Act 2004

  • [24]

    s.18 (3A) Housing (Scotland) Act 1988 as inserted by s.12 Homelessness etc. (Scotland) Act 2003

  • [25]

    sch.5 part III Housing (Scotland) Act 1988 gives details of what 'suitable alternative accommodation' means

  • [26]

    s.22 Housing (Scotland) Act 1988

  • [27]

    s.18 (4A) Housing (Scotland) Act 1988 as inserted by s.12 Homelessness etc. (Scotland) Act 2003

  • [28]

    s.18 (4A) Housing (Scotland) Act 1988 as inserted by s.12 Homelessness etc. (Scotland) Act 2003

  • [29]

    Govanhill Housing Association v O'Neil [1991

  • [30]

    Wandsworth LBC v Hargreaves [1994] 27 HLR 142

  • [31]

    SSHA v Lumsden [1984] SLT (Sh Ct) 71

  • [32]

    Glasgow DC v Brown [1988] SCLR 679