Repossession process for a private residential tenancy

This section details how repossession action is raised for private residential tenants.

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

This content applies to Scotland

Notice to Leave

To start the repossession process, the landlord must first give written notice in the form of a valid Notice to Leave.

To be valid, the Notice to Leave:

  • must be in the prescribed form. [1]

  • must state the day on which the landlord expects to be entitled to apply to the First Tier Tribunal for an eviction order [2]

  • must state the relevant ground or grounds being used [3]

All three of these requirements have to be complied with. If there is information missing, or there are errors in calculating the correct date on which the notice expires or the relevant grounds are not clearly stated then the Notice to Leave may be invalid and the tenant may be able to defend the action on this basis.

The Notice to Leave is valid for a period of six months (from the date of expiry of the notice). If an application to evict is not made to the First-Tier tribunal within this six-month period a new Notice to Leave would need to be issued. [4]

The First Tier Tribunal may consider an application made before the end of the notice period, if it considers that it is reasonable to do so. [5] However, it is likely that this would only be granted in very exceptional circumstances.

If the tenant agrees to leave then the tenancy comes to an end on the date the tenant leaves or the date specified in the notice, whichever is the later of these. [6]

Errors in Notice to Leave

Although the legislation allows for 'minor errors' these are only allowable if this does not 'materially affect the effect of the document'. [7]

Although not yet tested at the Upper Tribunal, it has been held in a number of First Tier Tribunal cases that errors in the the statutory requirements cannot be considered to be minor errors as they do 'materially affect the effect of the document'. This was described in one particularly well written tribunal decision as 'The notice should, at the very least, correctly inform the tenant of the “why” (the statutory ground) and the “when” of the proceedings that the landlord anticipates raising.’ [8]

For some types of tenure the legislation requires notice 'no less than' a certain number of days. However, the legislation in relation to notice periods for private residential tenants does not include these words. [9] This would suggest that even if a landlord has made an error which gives the tenant a longer notice period than statute requires this would also result in the Notice to Leave being invalid. [10]

Ground must apply at the time of service

It has been clarified at Upper Tribunal that the ground for eviction must be satisfied at the date of service of the Notice to Leave. The landlord cannot just serve notice for example in anticipation that the arrears will have reached the statutory level by the time the case goes to a hearing. The wording on the prescribed Notice to Leave makes it clear that the ground must apply at the time of service. [11] So for example, where the landlord is raising eviction action on the basis of rent arrears advisers should be careful to check whether the arrears were at the required level on the date of service.

Sub-tenants

A landlord may also serve a Subtenancy Notice to Leave on any subtenants. [12] This is a separate notice with its own specific form. [13] The notice periods and procedure are the same as for a direct tenant.

Notice period

Usually, there are two different periods of notice dependent on the length of time the tenant has lived in the property. [14]

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. [15]

For notices served on or after 30 March 2022

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 the notice period is 28 days.

The six conduct grounds are:

  • Ground 10 – Not occupying let property

  • Ground 11 – Breach of tenancy agreement

  • Ground 12 - Rent arrears

  • Ground 13 – Criminal behaviour

  • Ground 14- Anti-social behaviour

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

If the tenant has lived in the property for more than six months and any other ground is being used then the notice period is 84 days (12 weeks).

For notices served between 7 April 2020 and 29 March 2022

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

  • 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.

Regardless of when notice is served there remains a 28 day notice period where the ground is ground 10 - the tenant is not occupying the let property.

Calculating correct notice period

The tenant must be given the correct amount of notice. This can be found on section 4 of the Notice to Leave.

"An application will not be submitted to the Tribunal for an eviction order before _________(insert date)."

In order to calculate this date the following applies:

  • The day on which the notice period is deemed to start is the day which the tenant receives the notice. This is assumed to be 48 hours after it is sent. [16]

  • The landlord cannot make an application to the tribunal until the day falling after the notice period expires. [17]

Tenant can still give their own notice

The tenant is still entitled to give their own minimum notice (usually 28 days) [18] potentially ending the tenancy (and any rental liability) sooner than this. See the section on the Tenant wants to leave for more information on this.

Applying to the First Tier Tribunal

If a tenant does not move out on the expiry of the notice, the landlord cannot evict without first gaining an eviction order.

An application to the First Tier Tribunal for an eviction order must include a copy of the: [19]

  • Notice to Leave given to the tenant

  • Section 11 Notice - this must be sent to the local authority notifying them of possession action

See the section on Tribunal procedures for more details of the procedure once the application has been made.

If eviction is granted

If an eviction is granted there will be a short delay between the decision and the actual eviction being carried out. See the section on Eviction procedure for more information.

Enforcement - eviction ban

The Scottish Government brought in emergency regulations to temporarily prevent the enforcement of evictions during the Coronavirus COVID-19 outbreak.

  • the ban covered both social rented and private rented sector tenancies as well as mortgage repossessions

  • the ban applied in Level 3 and 4 areas

  • it was a ban on enforcement action - sheriff officers could not attend a property to serve a Charge for Removal or carry out an eviction or a mortgage repossession during period where the ban applies unless the eviction was granted due to criminal or antisocial behaviour.

Scotland moved out of the levels system on 9 August 2021, so the ban is no longer in force anywhere in the country.

Wrongful termination of tenancy

Where a tenancy has been ended, either by the landlord serving notice or by the granting of an eviction order by the First Tier Tribunal, and the tenant believe this was under misleading information, the tenant may apply for a Wrongful termination order.

Last updated: 30 March 2022

Footnotes

  • [1]

    schedule 5. reg. 6 Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017

  • [2]

    s.62 (1)(b) Private Housing (Tenancies) (Scotland) Act 2016

  • [3]

    s.62(1)(c) Private Housing (Tenancies) (Scotland) Act 2016

  • [4]

    s.55 Private Housing (Tenancies) (Scotland) Act 2016

  • [5]

    s.52(4) Private Housing (Tenancies) (Scotland) Act 2016

  • [6]

    s.50 Private Housing (Tenancies) (Scotland) Act 2016

  • [7]

    s.73 Private Housing (Tenancies) (Scotland) Act 2016

  • [8]

    para. 40 of decision, Holleran v McAllister FTS/HPC/EV/3231

  • [9]

    compare 62(1)(b)  and  (4),  and section 14(4) of the Housing (Scotland) Act 2001; see also para. 45 of decision Holleran v McAllister FTS/HPC/EV/3231

  • [10]

    para. 45 of decision Holleran v McAllister FTS/HPC/EV/3231

  • [11]

    schedule 5 reg. 6 The Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017 SSI 2017/297; Majid and Gaffney & Britton [2019] UT 59 UTS/AP/19/0037

  • [12]

    s.61 Private Housing (Tenancies) (Scotland) Act 2016

  • [13]

    schedule 6. Reg. 7 Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017

  • [14]

    s.54 Private Housing (Tenancies) (Scotland) Act 2016, as amended

  • [15]

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

  • [16]

    s.62(5) Private Housing (Tenancies) (Scotland) Act 2016

  • [17]

    s.62(4) Private Housing (Tenancies) (Scotland) Act 2016

  • [18]

    s.50(3) Private Housing (Tenancies) (Scotland) Act 2016

  • [19]

    s.52 Private Housing (Tenancies) (Scotland) Act 2016