Wrongful termination of a private residential tenancy

The Cost of Living (Tenant Protection) (Scotland) Act 2022 temporarily increases the Sheriff Court and First-tier Tribunal's powers to set a new minimum and maximum rate of financial compensation for unlawful eviction. Where a tenant is illegally evicted during the lifespan of the Act, the court or tribunal may award a minimum of 3 months' worth of rent and a maximum of 36 months' worth of rent. [1]

Clients wishing to make an application for damages for unlawful eviction should be referred to a specialist housing solicitor.

Where a private residential tenancy has been ended by an eviction order the tribunal must be satisfied that one of the 18 grounds for eviction were met. If the tenant believes the tribunal was misled into granting the eviction they can make an application for a wrongful termination order to the tribunal. [2]

Where no eviction order was granted at the tribunal, a tenant can still make an application for a wrongful termination order. This is where they believe they were misled by the landlord into ceasing to occupy the property. For example, where the landlord has served notice under false pretences. [3]

A tenant will be unlikely to get a wrongful termination order granted if they fail to produce a valid notice to leave from the landlord. The tribunal has rejected an application for wrongful termination when:

• a notice to leave from the landlord was invalid, as it was not in the prescribed form [4]

• a tenant provided a text message from the landlord asking them to leave, instead of a valid notice to leave [5]

• a tenant was unable to produce any notice to leave [6]

The tribunal's position has yet to be tested at the upper tribunal. A tenant wishing to challenge it should seek legal advice from a housing solicitor.

The tribunal has advised that a tenant who cannot be granted a wrongful termination order due to an absence of a notice to leave could still apply for damages for unlawful eviction. [7] A private residential tenant would use a civil proceedings action under Rule 111, citing damages under the Housing (Scotland) Act 1988.

See the page on damages for unlawful eviction for further information.

There is no time limit for the tenant to make a claim, however it would appear to be sensible that the tenant makes their claim as soon as is practical, in terms of evidence.

An application to the First Tier Tribunal Housing and Property Chamber should be in writing. It should state under which section of the act the application is being made.

Where an eviction order was granted, it is an application under section 57(2). Where no eviction order was granted, it is an application under section 58(2) of the Act.

The application must state: [8]

• the name and current address of the former tenant

• the name, address and profession of any representative of the former tenant, and

• the name, address and registration number (if any) of the former landlord

The application must:

• include evidence that the tenancy was unlawfully terminated, and

• be signed and dated by the tenant or their representative

Where an application is made under section 58(2) of the Act - where no eviction order was granted at the tribunal - it is advised that the tenant also submits a copy of the notice to leave.

The tribunal shall proceed with the application and must consider the evidence. The landlord will be asked to provide their own evidence and the tribunal must then make a decision.

Where the tribunal finds that the tenancy ended due to misleading information they have the power to make a wrongful termination order against the landlord.  

They may also require the landlord to make a payment to the tenant of up to the value of six months’ rent. [9]

Where a wrongful termination order is made the tribunal must send a copy of this to the local authority. [10] Such information can be considered by the local authority when determining whether the landlord is a fit and proper person. See the pages on landlord registration for more information about this.