Mandatory grounds for possession

If the tribunal is satisfied that a mandatory case for possession is met, it must grant the possession order.

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)

If you are advising a client with a regulated tenancy who is at risk of eviction please speak to a specialist housing law solicitor.

This content applies to Scotland

Mandatory cases

The mandatory cases for possession are listed in Part II of Schedule 2 of the Rent (Scotland) Act 1984. In mandatory cases there is no reasonableness requirement, but usually the landlord must have given prior notice in writing to the tenant that possession might be sought on the particular case, either at the start of the tenancy, or on a differently defined 'relevant date'.

Relevant date

The relevant date is usually the start date of the protected tenancy unless: [1]

  • the protected tenancy began before 8 December 1965, when the relevant date is 7 June 1966

  • the protected tenancy was a furnished tenancy and was created before 14 August 1974, in which case the relevant date is 14 February 1975

  • the tenancy became regulated by virtue of Crown property passing into the management of the Crown Estate Commissioners, when the relevant date is 8 February 1981.

Failure by the landlord to serve notice before the relevant date will often give the tenant a complete defence against proceedings. The tribunal can occasionally waive the need for the notice to have been served. The test to be used by the tribunal in deciding whether to dispense with this notice requirement is whether it is 'just and equitable' to do so. All the circumstances of the case must be considered. [2] Each case will be different and will turn on its own facts.

Case 11: Owner occupier (or heirs) require property

This case covers a number of situations. In relation to them all, however, the landlord must have given the tenant a notice, no later than the relevant date, saying that this case might be relied upon.

As well as the notice having been served on the tenant who is being taken to court, there is the additional requirement that the landlord must not have rented out the property to anyone else on a regulated tenancy since 8 December 1965 without having served such a notice. (If a tenancy was a furnished regulated tenancy, the crucial date is 14 August 1974.) However, the tribunal could dispense with the notices requirements if it thinks that it would be just and equitable to do so.

The situations that the case covers are as follows:

  • The owner-occupier needs the accommodation to live in themself, or for a member of their family to live in, provided the family member lived with the landlord during her/his last residence in the property.

  • The owner occupier has died, and a family member who was living with them at their death needs the property to live in.

  • The owner-occupier has died, and the person who has inherited the property needs it as a residence.

  • The property is not suitable for the landlord, in relation to their work, and they need to sell it in order to be able to buy something more suitable.

  • The landlord has defaulted on their mortgage and the lender has become entitled to sell the property in order to pay off the debt.

Case 12: Retirement property

If the landlord acquired the accommodation with a view to retiring there, and served a notice on the tenant telling them that this case might be used, the case will be satisfied if:

  • the landlord has now retired and requires the house to live in

  • the landlord has died, and the house is needed as a residence by a member of their family who was living with them at the time of their death, or by the person who inherited the house

  • the landlord has died, and their personal representatives want to sell it

  • the landlord has defaulted on their mortgage, and the lender is entitled to sell it to pay off the debt

  • the property is not suitable to the needs of the newly retired landlord, and they require to sell it to buy a suitable place.

As with Case 11, the notice must be served no later than a relevant date. Also, the landlord must have not have rented the property out on a regulated tenancy, to anyone, since 14 August 1974 without such a notice having been served.

However, the tribunal can ignore these rules about the notices if it considers it just and equitable to do so.

Case 13: Holiday lets

This relates to properties let for eight months or less. If the property has been occupied as holiday accommodation at some stage during the year preceding the beginning of the regulated tenancy, possession will be granted. There is a requirement that the regulated tenant was given notice that this case might be used no later than the relevant date.

Given the fact that it has not been possible to create new regulated tenancies since 2 January 1989, this case is now effectively obsolete.

Case 14: Educational off-term lets

This case deals with student accommodation that is let temporarily to non-students. If the property was subject to a student tenancy from the educational body at some point within the year before the beginning of the regulated tenancy, the educational body is entitled to possession. The regulated tenancy must be of no more than 12 months' duration.

Given the fact that it has not been possible to create new regulated tenancies since 2 January 1989, this case is now effectively obsolete.

Case 15: Short tenancies

Where the tenancy was a short tenancy, the tribunal will grant possession, provided that it has been properly brought to an end by way of a notice to quit.

Case 16: Minister/lay person/missionary property

Where a house is intended as tied accommodation for a minister or full-time lay missionary, but has been let on a regulated tenancy in the meantime, the religious organisation may recover possession. A notice that this case might be used must have been given to the regulated tenant no later than the relevant date. The tribunal must also be satisfied that the property is required for such tied accommodation and not for any other reason.

Case 17: Agricultural worker

Where someone (not an ex-employee or ex-employee's widow) becomes a regulated tenant of property that was agricultural tied accommodation, the landlord will be granted possession if s/he needs the property for agricultural tied accommodation.

The tenant must however have received a notice that this case might be used, no later than the relevant date.

Case 18: Amalgamation of farms

Where farms have been amalgamated and after the amalgamation property was let on a regulated tenancy to a non-farm worker, the landlord can recover the property if it is once again needed for tied accommodation. The landlord must have served notice that this case might be used no later than the relevant date.

The landlord has five years to recover the property under this heading following the approval of the amalgamation plans, or three years following the vacation of the property by the tied worker if they continued to occupy the property after the amalgamation.

Case 19: Farm occupation

Where farm property is let to the former farmer (or bereaved spouse) and the landlord needs the property back to be used again by a working farmer, this case can be used. The usual requirement about notice must be satisfied.

Case 20: Specially designed or adapted house

This relates to a house that has been designed or adapted for occupation by a person with special needs, but which is not being occupied by such a tenant. Where the landlord needs the property back for a person with special needs, possession will be granted under this case.

Case 21: Armed forces personnel

This relates to tenancies granted after 30 November 1980. Where a member of the armed forces rented out their property on a regulated tenancy, and informed the tenants by notice that this case might be relied upon, and they now need the property back as a residence, possession will be granted. If they need to sell the house to buy property more suitable to their needs, they may also repossess. Similarly, if they have died, their heirs may gain possession. If they have defaulted on their mortgage, possession will be given if the lender needs to pay off the debt.

Last updated: 22 June 2022

Footnotes

  • [1]

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

  • [2]

    Boyle v Verrall [1997] 1 EGLR 25