Grounds for possession in a private residential tenancy

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

Coronavirus (COVID-19) and changes to eviction procedure

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

  • the period of notice required (until 29 March 2022)

  • all grounds used in eviction actions in the private rented sector become discretionary (until at least 30 September 2022)

The Private Housing (Tenancies) (Scotland) Act 2016 restricts the circumstances under which the tribunal may grant an order for eviction from a private residential tenancy. These are called 'eviction grounds'.

Where a tribunal hearing or case management discussion has been scheduled the client should always be referred to an experienced housing law adviser or solicitor.

This content applies to Scotland

Eviction required for possession

A private residential tenancy can only be ended by either the tenant giving notice, or the tenant agreeing to leave. Under any other circumstances the landlord must first gain an order from the First Tier Tribunal Housing and Property Chamber. [1]

Caselaw in relation to ‘landlord intention'

In many of the grounds, one of the things which the tribunal are asked to consider is the 'intention' of the landlord.

Advisers should be alert that there may be a difference, for example, between a landlord who is required to evict tenants because they themselves need to live in the property and a landlord who moves into a property purely as a means of evicting tenants where there are perhaps no other grounds to do so.

However, it should be noted that the legislation suggests the bar is not set particularity high in terms of evidencing intention. For example, an affidavit may be sufficient in some cases. 

In one case where the landlord sought possession on the grounds that they intended to live in the property the Upper Tribunal held that there was no requirement to consider the 'suitability' of the property for the landlord and their family. The First Tier Tribunal were held to have applied the correct test when looking at intention. [2] However, it may be worth noting that the First Tier tribunal accepted that 'any intention must be 'genuine' and 'firm and settled'. [3]

Keep in mind the Equality Act

In certain circumstances, tenants may be able to defend eviction proceedings using the Equality Act 2010. See the section on the Equality Act for more information.

Mandatory or discretionary ground

The eighteen grounds for possession are detailed in Schedule 3 of the Private Housing (Tenancies) (Scotland) Act 2016.

Usually, there are ten mandatory grounds, where the tribunal has no discretion to refuse eviction if the ground is proved, and eight discretionary grounds, where the tribunal should consider whether it is reasonable to grant an eviction order 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 until at least 30 September 2022. This means whilst this Act is in force, for all grounds, the tribunal must consider whether it is reasonable to issue an eviction order ‘on account of those facts’. [4]

Notice periods

Before raising proceedings, a landlord must give the tenant notice by serving a Notice to Leave. See the section Repossession process for a private residential tenancy for more details of the requirements.

Usually, there are two different periods of notice dependent on the length of time the tenant has lived in the property. [5]

  • If the tenant has lived in the property for six months or less, regardless of the ground used the notice period is 28 days.

  • If the tenant has lived in the property for more than six months and one of the six conduct grounds are being used (Grounds 10-15) the notice period is 28 days.

  • If the tenant has lived in the property for more than six months and the conduct grounds are not being used (Grounds 1-11 and 17-18) the notice period is 84 days (12 weeks)

However, Schedule 1 of the Coronavirus (Scotland) Act 2020 has the effect of making a temporary change to the notice periods. [6]

For notices served between 7 April 2020 and 29 March 2022, regardless of the length of time the tenant has occupied the property, the notice period is 6 months, 3 months or 28 days.

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

It should be noted that legislation uses the phrase 'entitled to occupy the let property’. So for example, where a tenancy has converted from an older tenancy type, time under the former tenancy agreement is counted.[7]

Ground 1: Landlord intends to sell

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

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

The tribunal must/may make an order for eviction if they are satisfied that: [8]

  • The landlord is entitled to sell the property and

  • That the landlord intends to put it up for sale within three months of the tenant ceasing to occupy it.

Evidence of this may include:

  • a letter of engagement from a solicitor or estate agent or

  • a recently prepared Home Report.

Ground 2: Property to be sold by lender

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

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

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. The tribunal must/may make an order for eviction if they are satisfied that:[9]

  • The let property is subject to a heritable security

  • The creditor is entitled to sell the property

  • The creditor requires the tenant to leave the property for the purposes of selling with vacant possession.

If the lender is taking enforcement the tenant has to be notified of this. For more information, please see the section on Tenants of mortgage borrowers.

Ground 3: Landlord intends to refurbish

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

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

This ground is to be used where the landlord intends to carry out significant works to the property. The tribunal must/may make an order for eviction if they are satisfied that: [10]

  • The landlord intends to refurbish the property (or any premises of which the let forms part)

  • The landlord is entitled to do so

  • It would be impracticable for the tenant to continue to occupy the property given the nature of the refurbishments intended.

Evidence of this could include:

  • Any planning permission which the intended refurbishment would require

  • A contract between the landlord and an architect or a builder which concerns the intended refurbishment.

Ground 4: Landlord intends to live in the property

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time3 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

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

This ground is to be used where the landlord intends to live in the property. The tribunal must/my make an order for eviction if they are satisfied that: [11]

  • the landlord intends to live in the property as their only or principal home for a period of at least three months.

In addition:

  • Where two or more persons jointly own the property, any one of them counts as the landlord.

  • Where the landlord hold’s interest as trustee, the landlord is the person who is the beneficiary of that trust.

  • Evidence may be by way of a signed affidavit stating that this is the landlord’s intention.

Ground 5: Family member intends to live in the property

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time3 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

Discretionary ground.

The tribunal may make an order for eviction where they are satisfied that: [12]

  • A member of the landlord’s family intends to occupy the property as that persons only or principal home for at least three months and

  • The tribunal is satisfied that it is reasonable to issue an eviction order on account of that fact

A member of the landlord’s family is to be regarded as having the intention to occupy if that family member is incapable of having or expressing that intention and the landlord and (if different) a person entitled to make decisions about where the family members lives, have the intention that the family member will occupy the property as their only or principal home for at least three months.

Family members are defined as being related in the following ways to either the landlord or the landlord’s partner or spouse:

  • Grandparent

  • Parent

  • Child

  • Grandchild

  • Brother

  • Sister

  • Or, the partner or spouse of the landlord or one of these family members above.

For the purposes of this:

  • Relationships of half-blood are considered as whole blood.

  • A step child is considered to be a child

  • A child who has been treated as a person’s child is to be regarded as a child.

Evidence of the intention to occupy may be provided for example, by an affidavit.

When looking at ‘reasonability’ in this context there is no guidance as yet as to what factors the tribunal may consider. Where there is a closer relationship and evidence of need on the part of the family member requiring the property, courts have been inclined to find in the landlord’s favour.[13] Conversely where the tenant is likely to suffer more hardship than the landlord the court has found in favour of the tenant. [14]

Ground 6: Landlord intends to use for non-residential purposes

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

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

The tribunal must/may make an order for eviction where they are satisfied that: [15]

  • The landlord intends to use the property for a purpose other than providing a person with a home

  • Evidence of this intention could be for example, relevant planning permission.

Ground 7: Property required for religious purposes

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

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

This ground applies where the property is required for use in connection with the purposes of a religion. The tribunal must/may make an order for eviction where they are satisfied that: [16]

  • The property is held for the purpose of being available for occupation by a person engaged in the work of a religious denomination as a residence from which the duties of such a person are to be performed

  • The property has previously been occupied by a person engaged in the work of a religious denomination as a residence from which the duties were performed and

  • The property is required for occupation by a person engaged in the work of a religious denomination as a residence from which the duties of such a person are to be performed

The legislation provides examples such as priest, imam, rabbi, monk but the religion can be of any denomination and the work could include non-spiritual work such as gardeners, caretakers etc if these duties can be considered to be part of the religious work.

Ground 8: not an employee

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

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

This ground applies where the tenancy was entered into to provide an employee with a home but they are no longer an employee.

The tribunal must/may make an order for eviction where they are satisfied that: [17]

  • The tenancy was granted in consequence of the tenant becoming an employee of the landlord or

  • In the expectation that the tenant would become an employee of the landlord and

  • The tenant is not or is no longer an employee of the landlord

The landlord has twelve months to apply under this ground although the tribunal may consider granting an eviction later than this where it is reasonable to do so.

Ground 9: No longer in need of supported accommodation

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

Discretionary ground

Although not expected to be used often, this ground is for use where the tenant had an assessed need for community care and the tenant has since been assessed as no longer having this need. The tribunal must make an order for eviction where they are satisfied that: [18]

  • The tenancy was granted in consequence of the tenant being assessed under section 12A of the Social Work (Scotland) Act 1968 to have needs calling for the provision of community case services and

  • The tenancy would not have been granted to the tenant on the basis of the latest assessment of the tenant’s needs under that section and

  • The tribunal considers it reasonable to grant an eviction on account of that fact.

Ground 10: Not occupying let property

Regardless of how long the tenant has occupied the property or when the notice was served the notice period is 28 days

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

This ground is intended to cover cases where the tenant has abandoned the property.

The tribunal must/may make an order for eviction where they are satisfied that: [19]

  • The let property is not being occupied as the only or principal home of either

    - The tenant or

    - A person to whom a sub-tenancy of the let property has been lawfully granted and

  • The property’s not being so occupied is not attributable to a breach of the landlord’s duties under the repairing standard

There is no guidance within the legislation as yet as to what evidence is required or what efforts the landlord will be expected to make to ensure the tenant is no longer occupying the property as their only or principal home. There is case law which has defined ‘principal home’ [20] which may be useful to take into account. Advisers should note however, that the legislation for private residential tenants regarding abandonment differs from that which applies to Scottish secure tenancies - there is no requirement here for a landlord to ensure that the tenant ‘does not intend to occupy the property’, only that they are not currently doing so.

Ground 11: Breach of tenancy agreement

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Any amount of time28 days

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 relating to the behaviour of the tenant that should also relate to the use of the house. The tribunal may make an order for eviction where they are satisfied that: [21]

  • The tenant has failed to comply with an obligation of the lease other than paying rent and

  • The tribunal considers it reasonable to evict on account of this

Ground 12: Rent arrears

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Any amount of time28 days

Mandatory ground but only if:

  • notice was served before 7 April 2020 AND

  • there have been arrears for at least three consecutive months AND

  • at least one month’s rent in total is owed on the day of the tribunal hearing

Discretionary ground if:

  • less than one month’s rent in total is owed OR

  • notice served after 7 April 2020 regardless of amount of arrears (due to the Coronavirus Act).

The tribunal must/may make an order for eviction where they are satisfied that: [22]

  • on the day the tribunal considers the matter

  • the tenant is in arrears equivalent to an amount equal to or greater than one month rent amount and

  • has been in arrears of any amount for a continuous period of up to three or more consecutive months and

  • the tribunal is satisfied the arrears are not wholly or partly due to delay or failure of payment of relevant benefit.

The tribunal may make an order for eviction where they are satisfied that:[23]

  • the tenant has been in arrears of any amount for a continuous period of up to three or more consecutive months and

  • It is reasonable to evict on account of this fact.

Advisers should also see the page - Private Residential Tenancy rent arrears in the preventing eviction section. 

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: [24]

  • 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 [25] (This is the date the application is received by the tribunal),

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

It is common for rent payments to be late due to delays in housing benefit payments. It is not mandatory for the tribunal to make an eviction order if the rent arrears are due to any delay or failure in payment of rent caused by problems with relevant benefit payments. [26]

Relevant benefit payments include:

  • Rent allowance or rent rebate under the Housing Benefit Regulations

  • Payment on account under regulation 91 of these regulations

  • Universal credit where the payment in question includes an amount in respect of rent

  • Payments of student grant or loan.

Ground 13: Criminal behaviour

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 2 October 2020Any amount of time3 months
On or after 3 October 2020Any amount of time28 days

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

The tribunal must/may make an order for eviction where they are satisfied that: [27]

  • The tenant receives a relevant conviction and

  • The application for eviction is made within 12 months of the tenant’s conviction or

  • The tribunal are satisfied the landlord has a reasonable excuse for not making the application within that period

A relevant conviction is defined as covering:

  • An offence which involved using or allowing the property to be used for an immoral or illegal purpose for example drug dealing or using the property as a brothel or

  • An offence committed within or in the locality of the property and which is punishable by imprisonment.

Where there are joint tenants the ground applies to both even where only one of the parties are involved in criminal activities.

Ground 14: Anti-social behaviour

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 2 October 2020Any amount of time3 months
On or after 3 October 2020Any amount of time28 days

Discretionary ground.

The tribunal may make an order for eviction where they are satisfied that: [28]

  • the tenant has behaved in an anti-social manner in relation to another person and

  • The application for eviction is made within 12 months of the antisocial behaviour occurring or,

  • The tribunal are satisfied the landlord has a reasonable excuse for not making the application within that period

Behaving in an anti-social manner in relation to another person is defined as:

  • Doing something which causes or is likely to cause the other person alarm, distress, nuisance or annoyance or,

  • Pursuing, in relation to the other person, a course of conduct which:

  • Causes or is likely to cause the other person alarm distress nuisance or annoyance or

  • Amounts to harassment of the other person

‘Conduct’ includes speech. ‘Course of conduct’ means conduct on two or more occasions.

‘Harassment’ is to be construed in accordance with s.8 Protection from Harassment Act 1997

Antisocial behaviour is considered to be ‘relevant anti-social behaviour’ if the tribunal is satisfied that it is reasonable to issue an eviction order as a consequence of it given the nature of the antisocial behaviour and:

  • Who it was in relation to, or

  • Where it occurred

Ground 15: Association with person who has relevant conviction or engaged in relevant anti-social behaviour

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 2 October 2020Any amount of time3 months
On or after 3 October 2020Any amount of time28 days

Discretionary ground.

The tribunal may make an order for eviction where they are satisfied that the tenant: [29]

  • Associates with a person who has received a relevant conviction (as defined in the section above) or,

  • Associates with a person who has engaged in relevant antisocial behaviour.

In this ground ‘a person’ is defined as a person who

  • Resides or lodges in the property, or

  • Has sublet the property (or part of it) from the tenant, or

  • Has been admitted to the property on more than one occasion.

In addition

  • The application for eviction must be made within 12 months of the antisocial behaviour occurring or,

  • The tribunal must be satisfied the landlord has a reasonable excuse for not making the application within that period

A ‘relevant conviction’ is defined as covering:

  • An offence which involved using or allowing the property to be used for an immoral or illegal purpose for example drug dealing or using the property as a brothel or

  • An offence committed within or in the locality of the property and which is punishable by imprisonment.

Antisocial behaviour is considered to be ‘relevant anti-social behaviour’ if the tribunal is satisfied that it is reasonable to issue an eviction order as a consequence of it given the nature of the antisocial behaviour and:

  • Who it was in relation to, or

  • Where it occurred

Ground 16: Landlord has ceased to be registered

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time3 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

Discretionary ground.

The tribunal may make an order for eviction where they are satisfied that: [30]

  • The landlord is not entered into the landlord register because either:

    - The local authority has refused or

    - The local authority have removed the landlord in accordance with the legislation

  • By continuing to let the property the landlord would be:

    - Committing an offence under the legislation or

    - Would be doing so but for subsection 6 (which relates to having a reasonable excuse)

Ground 17: HMO license has been revoked

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time3 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

Discretionary ground.

The property is considered to be a House of Multiple Occupation but does not have the relevant HMO license. This ground covers situations where the landlord has never applied for the license and where one has been revoked. The tribunal may make an order for eviction where they are satisfied that: [31]

  • The HMO licence has been revoked and

  • The tribunal are satisfied that it is reasonable to evict on account of this fact.

The tribunal will be required to balance the needs of the local authority to maintain the integrity of the licensing regime with the disadvantage to the tenant losing their home.

Ground 18: Overcrowding statutory notice

Notice required:

When notice was servedTime spent in propertyNotice period
Between 7 April 2020 and 29 March 2022Any amount of time6 months
On or after 30 March 2022Less than 6 months28 days
On or after 30 March 20226 months or more84 days

Discretionary ground.

Where a landlord has had a statutory overcrowding notice the following ground can be used. The tribunal may make an order for eviction where they are satisfied that: [32]

  • A statutory overcrowding notice has been served and

  • The tribunal are satisfied that it is reasonable to evict on account of this fact.

Last updated: 28 March 2022

Footnotes

  • [1]

    s.44 Private Housing (Tenancies) (Scotland) Act 2016

  • [2]

    Ortega and Lopez [2019] UT 57 UTS/AP/19/0040

  • [3]

    Cunliffe v Goodman 1950 2 KB 237 was cited in Ortega and Lopez [2019] FTS/HPC/EV/19/0967

  • [4]

    sch.1 para. 1 Coronavirus (Scotland) Act 2020

  • [5]

    s.54 Private Housing (Tenancies)(Scotland) Act 2016

  • [6]

    s.54 Private Housing (Tenancies)(Scotland) Act 2016, as amended by para.2 sch.1 Coronavirus (Scotland) Act 2020

  • [7]

    s.54 Private Housing (Tenancies)(Scotland) Act 2016

  • [8]

    sch.3 para.1 Private Housing (Tenancies) (Scotland) Act 2016

  • [9]

    sch.3 para.2 Private Housing (Tenancies) (Scotland) Act 2016

  • [10]

    sch.3 para.3 Private Housing (Tenancies) (Scotland) Act 2016

  • [11]

    sch.3 para.4 Private Housing (Tenancies) (Scotland) Act 2016

  • [12]

    sch.3 para.5 Private Housing (Tenancies) (Scotland) Act 2016

  • [13]

    Hodges v Blee [1988] 20 H.L.R. 32

  • [14]

    Baker v MacIver 1990 22 H.L.R. 328

  • [15]

    sch.3 para.6 Private Housing (Tenancies) (Scotland) Act 2016

  • [16]

    sch.3 para.7 Private Housing (Tenancies) (Scotland) Act 2016

  • [17]

    sch.3 para.8 Private Housing (Tenancies) (Scotland) Act 2016

  • [18]

    sch.3 para.9 Private Housing (Tenancies) (Scotland) Act 2016

  • [19]

    sch.3 para.10 Private Housing (Tenancies) (Scotland) Act 2016

  • [20]

    Roxburgh DC v Collins 1991 S.L.T. (Sh.Ct) 49

  • [21]

    sch.3 para.11 Private Housing (Tenancies) (Scotland) Act 2016

  • [22]

    sch.3 para.12(2) Private Housing (Tenancies) (Scotland) Act 2016, as amended

  • [23]

    sch.3 para.12(3) Private Housing (Tenancies) (Scotland) Act 2016, as amended

  • [24]

    sch. 3 para.12 (3A) Private Housing (Tenancies) (Scotland) Act 2016 as amended

  • [25]

    para. 6 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 SSI

  • [26]

    sch.3 para.12 (4) Private Housing (Tenancies) (Scotland) Act 2016 as amended

  • [27]

    sch.3 para.13 Private Housing (Tenancies) (Scotland) Act 2016

  • [28]

    sch.3 para.14 Private Housing (Tenancies) (Scotland) Act 2016

  • [29]

    sch.3 para.15 Private Housing (Tenancies) (Scotland) Act 2016

  • [30]

    sch.3 para.16 Private Housing (Tenancies) (Scotland) Act 2016

  • [31]

    sch.3 para.17 Private Housing (Tenancies) (Scotland) Act 2016

  • [32]

    sch.3 para.18 Private Housing (Tenancies) (Scotland) Act 2016