Ending a contractual regulated tenancy

There are different ways in which a protected or contractual tenancy can be brought to an end.

This content applies to Scotland

Agreement between landlord and tenant

It is quite common for tenancy contracts to allow either party to terminate the tenancy before the end of the contract term. It might say, for example, that the tenant must give the landlord 28 days' written notice, and vice versa.

Even if the contract does not provide for this, or if there is no written contract, the landlord and tenant can come to an agreement about ending the tenancy prematurely. If no agreement can be reached between the landlord and tenant and no provision exists in the contract, they must wait till the end of the contractual period.

Tenant serves notice to quit

If no agreement between landlord and tenant is possible, the tenant can only terminate the protected tenancy by giving the landlord a notice to quit at the end of the contract's duration. This must be in writing. The length of the notice is subject to the statutory absolute minimum duration of four weeks. [1] If the lease is for a year's duration or more, the minimum period is 40 days. [2]

If a tenant leaves the tenancy prematurely, they are in breach of contract and may be liable to compensate the landlord for their financial losses. A landlord in this situation would have to raise a legal action to establish the breach of contract and the extent of their loss. English caselaw has held that the landlord does not have to show that they had attempted to mitigate their losses (for example, by re-advertising the property). [3] It is not a crime to breach contract in such a situation. It is purely a civil matter.

A tenant who wants to avoid their landlord raising an action to cover their financial losses could find someone else to occupy the property and come to an informal agreement with the landlord or formally assign the tenancy.

Landlord serves notice to quit

The landlord, like the tenant, may terminate the protected tenancy at its expiry by serving a notice to quit on the tenant. Where the tenancy is of more than four months' duration, the minimum period of notice to be given is 40 clear days. [4] For tenancies of a shorter duration, the minimum is one-third of the duration of the tenancy, [5] subject to the absolute minimum in residential tenancies of 28 clear days. [6]

It should be noted therefore that there are different notice periods depending on whether the notice is given by the landlord or by the tenant.

The notice must also contain prescribed information [7] which tells the tenant that the landlord is still required to obtain an order before the tenant must leave. A notice to quit will not be valid if it is not in a prescribed form or if any mistakes have been made in calculating the notice period. [8]

It is important to remember that the protected tenancy does not ordinarily come to an end when the contract runs its full term. The law presumes that the parties want the lease to automatically repeat (tacitly relocate) unless one of them signals the contrary intention by serving a notice to quit.

Last updated: 13 November 2017

Footnotes

  • [1]

    s.112 Rent (Scotland) Act 1984

  • [2]

    s.37 Sheriff Courts (Scotland) Act 1907 as amended by s.4 Sheriff Courts (Scotland) Act 1971

  • [3]

    Reichman and Dunn v Beveridge and Gauntlett [2006] EWCA Civ 1659

  • [4]

    s.37 Sheriff Courts (Scotland) Act 1907 as amended by s.4 Sheriff Courts (Scotland) Act 1971

  • [5]

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

  • [6]

    s.112 Rent (Scotland) Act 1984

  • [7]

    Rent Regulation (Forms and Information Etc.) (Scotland) Regulations 1991, SI 1991/1521, as amended by the Rent Regulation (Forms and Information Etc.) (Scotland) Regulations 1993, SI 1993/647 and the Housing (Scotland) Act 2006 (Consequential Amendments) Order 2007, SSI 2007/475

  • [8]

    s.112 Rent (Scotland) Act 1984