Special possession ground for short assured tenancies
The tribunal are bound to grant decree for recovery of possession of a property let on a short assured tenancy where the landlord seeks recovery under section 33 of the 1988 Housing (Scotland) Act.
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Section 33
The tribunal must always consider whether it is reasonable to evict even if an eviction is being sought under section 33. [1]
When using the section 33 ground there is no requirement to serve a section 19 notice (AT6) before applying to the tribunal for an order for possession.
To terminate a short assured tenancy under section 33 of the Housing (Scotland) Act 1988, four conditions must be satisfied:
The short assured tenancy must have reached its expiry date (ish). [2]
Tacit relocation must not be operating (this means that a notice to quit must have been correctly served). [3]
No new contract must have been entered into. [4]
The landlord must have given a section 33 notice to the tenant saying that s/he requires possession of the property (a section 33 notice is different from notice to quit). [5]
Tenancy must have reached its ish
This is a straightforward requirement that the landlord is not entitled to recover possession before the contractual period has run its course. [6]
Notice to quit
Tacit relocation must not be operating. In Scots law, contracts of lease will automatically repeat ('tacitly relocate') on their expiry unless one of the parties gives proper notice that s/he doesn't want this to happen. Where tacit relocation has occurred, the tenant is entitled to enjoy a new term of tenancy and the landlord will not be able to recover possession until this 'new' term has expired.
To prevent tacit relocation the landlord must give notice that s/he wants to end the contract at the end of the fixed term. [7] The Notice to Quit must contain specific prescribed information. For example (from 6th March 2019) 'Even after the Notice to Quit has run out, before the tenant can lawfully be evicted, the landlord must get an order for possession from the First Tier Tribunal for Scotland Housing and Property Chamber.' [8]
If the lease is for over four months then 40 days' notice is required.[9] For leases of four months or less, the period of notice is one-third of the duration of the let. There is potential for a landlord include a clause in the lease which may lower the notice period however it cannot be reduced further than the statutory minimum of 28 days. [10] If the notice to quit is not served at least the correct number of days before the ish date then the tenancy will tacitly relocate.
No new contract of lease has been entered into
Advisers should ensure that no new agreement has been entered into. If a new agreement has been entered into, it is not possible for the landlord to recover possession. [11]
The landlord must have given notice as per section 33
This is not a notice to quit. This notice is sometimes referred to as a section 33 notice [12] (after the section which details it) however there is no requirement for it to be in a prescribed form. It must be clear that the landlord requires possession of the house. Usually the period of notice must be at least two months.
The contract of lease may well stipulate a longer period and, if so, should be adhered to. [13] Such a contractual stipulation is more likely to appear in relation to short assured tenancies of a long duration.
Service
Legislation requires that notice under section 33 must be 'given' to the tenant either by delivering it to the tenant, leaving at their last known address or sending it by recorded delivery to their last known address. [14] While the section does not explicitly stipulate that notice must be in writing, the wording of the section and the fact that giving such a notice verbally would make proof of its service difficult, implies that it should be in writing.
Where a landlord is serving Notice to Quit at the same time it should be noted that the Notice to Quit must either be be served by recorded delivery or by sheriff officers. [15]
Timing
The section 33 notice can be given to the tenant before, at or after the termination of the contractual short assured tenancy. [16] The landlord could, therefore, plan for the Notice to Quit and the section 33 notice to expire on the same day, that is, the last day of the contract (ish). It has been held however that the notice to quit and section 33 notice should be considered to be two separate documents [17] and so where there is any doubt over this legal advice should be sought.
The landlord may also choose to serve a notice to quit, and keep her/his options open about when to recover possession. Once notice to quit has ended the tenant the landlord may give a section 33 notice at any time.
The practice of including the section 33 notice in the original tenancy agreement, or issuing the notice at the same time as the agreement, has been described as 'highly doubtful'. [18] If advisers encounter such a situation, they should seek further advice.
Tribunal requirements
The landlord cannot evict until an order has been granted by the First Tier Tribunal Housing and Property Chamber. In addition to meeting the requirements above a landlord seeking to evict using the section 33 process must include with their tribunal application evidence that they have served a section 11 notice on the local authority.
The tribunal should not proceed with an application where this requirement has not been met. [19]
Last updated: 7 February 2023