The Scottish Government has replaced the existing types of tenancies – assured tenancies and short assured tenancies – with a new Private Residential Tenancy. The new rules will apply to all tenancies granted after 1st December 2017.
Existing tenancies as at 1st December 2017 will be unaffected and will continue to operate under the old rules.
A model tenancy agreement has been prepared by the Government and large sections of this will be mandatory and will therefore require to be used by agents and landlords.
One of the major changes is to how a tenancy can be ended.
ENDING THE TENANCY AGREEMENT
The new act makes substantial changes to the ending of a tenancy and the Landlord’s right to evict a tenant and recover the property.
Tenant ending the Agreement
The tenant can end the tenancy at any time by giving written notice to the landlord. That written notice must say that:
the tenant wants to end the tenancy and
the date on which the tenancy is to end.
(If it is a joint tenancy, all of the tenants must give the notice, not just one or some of them. See more detail later in this section.)
The tenant’s notice must be given to the landlord at least 28 days (or 4 weeks) before the date on which the tenant wants the tenancy to end. This may also be subject to any agreed minimum period stated in the lease.
Landlord ending the Agreement
The landlord can also end the tenancy by written notice to the tenant. This written notice is called a Notice to Leave. The landlord cannot simply end the tenancy because the landlord wants the tenancy to end. The landlord can only end the tenancy by giving Notice to Leave on one or more of the 18 grounds which are set out below. In addition, the minimum period of notice which the landlord must give the tenant will be 28 days (4 weeks) but the tenant may be entitled to 84 days’ (12 weeks’) notice depending on how long they have been living in the property and what ground is being used to remove the tenant – see below for more detail.
The landlord’s written notice to the tenant, ending the tenancy, must say:
- which one or more of the 18 grounds is the reason why the landlord is ending the tenancy;
- why the landlord thinks that ground applies; and
- the date on which the tenancy is to end.
All tenants are entitled to receive at least 28 days’ notice, but in some cases 84 days will be needed.
The period will be 24 days if on the date that the tenant receives the Notice to Leave, the tenancy has been running for six months or less;
the only eviction ground set out in the landlord’s notice to leave is one or more of the following:-
- the tenant is not occupying the property as the tenant’s only or main home;
- the tenant has breached the Agreement;
- the tenant has been in rent arrears for three or more months in a row;
- the tenant has been found guilty, in a court, of certain crimes; or
- the tenant has been involved in antisocial behaviour; or
- the tenant has been involved with a person who has been found guilty of certain crimes or has been involved in antisocial behaviour.
In all other cases, the tenant must get at least 84 days’ (or 12 weeks) notice.
If the Landlord wishes to end the tenancy this can now only be done if one of the following 18 grounds apply.
1. The Landlord intends to sell the property
2. The property is to be sold by mortgage lender
- The Landlord intends to refurbish which will require works where it would be impracticable for the tenant to occupy the property
- The Landlord intends to occupy the property as their principal home
- The Landlord intends to use property for non-residential purpose
- The property is owned by the Landlord for occupation by someone who works for a religious purpose.
- The tenant is not living at the property as his or her main home or has left the property.
- The tenant has been convicted of using the property for immoral/illegal purposes or convicted of an offence at or near the property
If any of these foregoing 8 grounds apply it is mandatory that a tribunal must issue an eviction order.
- A member of the landlord’s family intends to occupy the property as their principal home
- The tenant is no longer in need of supported accommodation
- The tenant has breached tenancy agreement (not including rent default)
- The tenant has acted in anti-social manner
- The tenant associates with someone who has a criminal conviction or who has engaged in anti-social behaviour
- The Landlord has been refused registration or had registration revoked
- The Landlord’s HMO licence has been revoked
- An overcrowding statutory notice has been served on the landlord
Items 9 to 16 are discretionary in that the Tribunal will decide whether it is right to terminate the tenancy.
Two grounds can be mandatory or discretionary. These are:-
- Rent arrears. This ground is mandatory only if (a) the tenant has not paid all of the rent due for three consecutive months; and (b) on the day of the tribunal at least one month’s rent is unpaid and (c) the Tribunal is satisfied that the lack of payment is not due to a delay or failure in the payment of benefits to the tenant.
- The tenancy was to an employee or anticipated employee and the tenant is no longer an employee or did not become an employee. This ground is mandatory unless 12 months have passed since the tenant ceased to be an employee or failed to become an employee.
If the tenant refuses to leave after having been served notice the Landlord would have to apply for eviction to a Tribunal. As stated, some of the grounds are mandatory; in other words if they do apply the Tribunal must order eviction. Others are discretionary which means that even if the ground is correct the Tribunal can decide whether to grant an order for eviction or not.
For the Landlord the notice period for the majority of grounds is 28 days if the tenant has been in residence for 6 months or less and 84 days if more than 6 months.