Discretionary grounds for possession

Discretionary grounds are listed in Part I of Schedule 2 of the Rent (Scotland) Act 1984. The tribunal has discretion in deciding whether to grant an order for possession in these cases.

This content applies to Scotland

Case 1: rent arrears or other breach of tenancy condition

The rent must have been lawfully due. If the tenant has withheld rent because the landlord has not performed their obligation under the tenancy (for example repairs), it can be argued that the rent was not lawfully due. The arrears must be continuing at the time of the tribunal hearing. [1]

Case 2: nuisance or annoyance

This applies to the tenant and to anyone living or lodging with them. The ground will be satisfied if any of these people is guilty of causing a nuisance or annoyance in the vicinity of the house. This ground is capable of relating to all kinds of behaviour. Noise nuisance is a very common complaint. [2] A single action is capable of establishing this ground, [3] 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. [4]

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. [5] There is scope, however, for arguing that under these circumstances it is not reasonable to grant the order. [6]

This case also covers using the house, or allowing it to be used, for immoral or illegal purposes. A criminal conviction is required for the case to be established. The actual use of the house is essential here. It is not enough merely that, for example, a criminal act occurred at the house. [7]

Case 3: deterioration of the condition of the house

This applies where the condition of the house has deteriorated because of neglect by, or behaviour of, the tenant. It is also applicable to anyone living or lodging with the tenant, or sub-letting from them. Where the deterioration was caused by a lodger or sub-tenant, the tenant, to avoid being caught by this ground, must take reasonable steps to remove the guilty party.

Case 4: deterioration of furniture

This is the same as Case 3, except it covers any furniture supplied with the accommodation.

Case 5: tenant has given notice to quit

This case deals with the situation where the tenant has given a notice to quit and the landlord has contracted to sell the property, or taken other steps that would be seriously prejudiced if the tenant were allowed to remain. It is unlikely that repossession would be granted on this ground if the landlord had not taken any positive steps in respect of the property as a result of receiving the notice to quit.

Case 6: subletting or assigning without permission

If the regulated tenant assigns her/his tenancy or sublets part or all of the accommodation without the express permission of the landlord, the landlord may seek recovery of possession under this heading. Permission requires more than the absence of a prohibition in the contract. [8]

Consent to subletting or assignment can be given implicitly or expressly, either orally or in writing. It may be given before or after the subletting. Determining whether a landlord has acquiesced to a subletting or assignment will depend on the circumstances of each situation. [9] For a landlord to acquiesce, s/he must be aware of the sublet or assignation. [10] Where a tenancy is terminated as a result of a court order, any lawful sub-tenant becomes the tenant of the landlord on the same terms as they would have held from the tenant if the tenant's protected or statutory tenancy had continued. [11]

Case 7: accommodation required by landlord for full-time employee

If the landlord reasonably requires the property for a full-time employee, possession can be sought under this case. However, for this ground to be used, the current tenant must be a former employee and have lived in the accommodation as tied accommodation, or the Secretary of State must have certified that the prospective employee is necessary for the proper working of an agricultural holding or as an estate worker in agricultural holdings. Being "reasonably required" is not as strict a test as being "absolutely needed". [12]

Case 8: accommodation reasonably required by landlord for own or own family occupation

The term 'family' relates to the landlord or the landlord's children (if they are over 18 years old), or their parents. The landlord's parents-in-law will also be included as long as they did not become landlord by buying the property from the previous landlord. With this case, the court is specifically instructed to think about whether granting the order would cause greater hardship than refusing the order. [13] The test of 'reasonably requiring' accommodation will be more difficult to satisfy than the equivalent test for assured tenancies, which is simply 'requiring' the accommodation. However, although the test relates to something more than mere desire, it is not as strong as "absolutely" needing the property. [14]

Case 9: excessive charge for sublet

Where a tenant sublets the property and charges more than they are allowed to be charged themself, this case applies.

Case 10: overcrowding

This relates to the situation where the accommodation is overcrowded to the extent that it is dangerous or harmful to the occupants, and the overcrowding is the result of having a lodger or sub-tenant whom it would be reasonable to remove.

Last updated: 1 December 2017

Footnotes

  • [1]

    Gordon DC v Acutt 1991 S.L.T. (Sh. Ct.) 78

  • [2]

    Collins and O'Carroll, 'Antisocial Behaviour and Housing: The Law', LSA, 1997, para. 10.2.3.6

  • [3]

    Govanhill Housing Association v O'Neil [1991] SCOLAG 174

  • [4]

    London Borough of Wandsworth v Hargreaves [1994] 27 H.L.R. 142

  • [5]

    Scottish Special Housing Association v Lumsden [1984] SLT (Sh Ct) 71

  • [6]

    Glasgow DC v Brown [1988] S.C.L.R. 679

  • [7]

    Robson and Halliday, 'Residential Tenancies', 2nd Edition, 1998, para. 5.38 citing Schneider and Sons Ltd v Abrahams [1925] 1 KB 301; Abrahams v Wilson [1971] 2 QB 88

  • [8]

    Robson and Halliday, 'Residential Tenancies', 2nd Edition, 1998, para.5.82 citing Dalrymple's Trustees v Brown [1945] SC 190; Regional Properties Ltd v Frankenschwerth and Chapman [1985] KB 631

  • [9]

    Paton and Cameron, 'Landlord and Tenant', 1967, p. 155

  • [10]

    Dalrymple's Trustees v Brown 1945 S.C. 190

  • [11]

    s.19 Rent (Scotland) Act 1984

  • [12]

    Aitken v Shaw [1933] SLT (Sh Ct) 21

  • [13]

    sch.2 part III para. 1 Rent (Scotland) Act 1984

  • [14]

    Aitken v Shaw [1933] SLT (Sh Ct) 21