Assured Tenancies in Scotland - Your Rights and Responsibilities
PART 3: PROTECTION FROM EVICTION (SECURITY OF TENURE)
11. Do all assured tenants have security of tenure?
Yes, but the details depend on whether the tenant has a short assured tenancy or not.
If he has an assured tenancy which is not a short assured tenancy, then he has security of tenure even when his contractual assured tenancy is ended. He need not leave his home unless the court grants an order which allows the landlord to repossess the house. The circumstances in which the court can grant an order are limited (see questions 28, 29, 30 and 31).
12. Does a tenant under a short assured tenancy have security of tenure?
Only during the agreed period of the let. During that time, a tenant with a short assured tenancy cannot be evicted as long as he does not break any of the tenancy conditions. At the end of the agreed period the landlord has the right to apply for repossession if he wants. But the tenant can still stay on until the court grants the landlord an order for possession.
13. Does it make any difference whether the house is furnished or unfurnished?
No.
14. What must a landlord do before gaining possession?
He must do 3 things:
1 . serve on the tenant a notice to quit [if the tenancy is a statutory assured tenancy, this will almost certainly have been done when the original contractual tenancy was terminated - it may not have been if the statutory assured tenancy arises through succession (see question 32))j
2. serve on the tenant a notice of proceedings indicating he is taking proceedings to gain
possession; and
3. obtain an order for possession from the sheriff court.
15. What if a landlord seeks possession without doing these 3 things?
It is a criminal offence for anyone to turn a tenant out of his home without a Court Order or to try to make him leave by intimidation, violence, withholding services such as gas or electricity, or any other sort of interference. [It is not a legitimate excuse for a landlord to say that he did not intend his actions to harass his tenant or force him to leave. An offence will still have occurred if he should have known that his actions would be taken by the tenant to be harassment to make him leave]. If anyone tries to force a tenant to leave his home by intimidation or any other form of harassment, the tenant should contact the police immediately.
A landlord found guilty of illegal eviction may be liable to pay damages to the evicted tenant. The level of damages will be based on any financial benefit to the landlord from having a house with vacant possession instead of a house with a sitting tenant.
All this applies to short assured tenancies as well as to other assured tenancies.
16. What is a notice to quit?
A notice to quit is a written document served by a landlord on a tenant or by the tenant on a landlord, which has the effect of bringing the contractual tenancy between them to an end at the date on which they agreed that it would end.
17. What if the landlord has not served a notice to quit and the agreed last date of a tenancy is reached?
if -
a.. the landlord has not served a notice to quit;
b. the last date as agreed between the landlord and the tenant of a tenancy has arrived; and
c. the tenant does not leave voluntarily, the principle is that the tenancy simply continues at common law, on exactly the same terms as before that date and for the same period, except that if the original tenancy was for more than one year the tenancy will continue for only a year at a time.
18. When can a Notice to Quit be served?
A notice to quit cannot take effect before the expiry date of the tenancy agreement.
19. if the landlord serves a notice to quit, does the tenant have to leave?
No. in spite of the name of a notice to quit, the tenant does not have to leave just because one has been served. He may continue in occupation until the landlord obtains an order for possession.
A landlord may not intend to seek such an order but may simply be serving the notice so as to bring a contractual assured tenancy to an end and bring a statutory assured tenancy into being. He may do this, for example, as a first step to allowing him to propose new tenancy terms or to seek an adjustment in rent .(see questions 9 and 45). if a landlord intends to seek possession of a tenant's house he has to serve on the tenant another notice, a notice of his intention to start possession proceedings. He is likely to do this at the same time as he serves a notice to quit.
20. Must the notice to quit be in any particular form?
No, but to be valid a notice to quit:
a. must be in writing;
b. must give a period of notice after which it will become effective (see question 22 for how long this period of notice has to be);
c. must make it clear that, even after the period of notice given has run out, the landlord must get an order for possession from a court before the tenant can lawfully be evicted. An order for possession will be either what is technically known as a decree of removing or a warrant of ejection; and
d. must explain that the effect of the notice to quit is that the contractual assured tenancy will be brought to an end at the end of the period specified in the notice but that it will at once be replaced by a statutory assured tenancy, and that the landlord will be able to propose new terms for the tenancy or a different rent, or both. If a notice to quit served by a landlord does not contain the information at b. to d. it will be invalid, and the tenancy will not be ended until a valid notice to quit is served.
21. Can a tenant serve a notice to quit on his landlord?
Yes. In this case the tenant is giving his landlord notice that he (the tenant) intends to give up the tenancy at the end of the period of notice given in the notice to quit. (If a tenant does not serve a notice to quit on his landlord, he may have to go on paying rent although he has left his former house.) A notice to quit served by a tenant must, like one served by a landlord, be in writing and must give the landlord at least the shortest period of notice allowed by the law (see question 22). But it does not have to contain all the information listed under question 20. A tenant who serves a notice to quit on his landlord, should be aware of the possibility of the landlord seeking repossession of the house under ground 10 in Schedule 5 to the Housing (Scotland) Act 1988 (see question 31).
22. What period of notice must a notice to quit give?
If the house is let:
a. by the week, fortnight or month, at least 4 weeks;
b. by the quarter (3 months), at least 31 days;
and
c. by the year, at least 40 days.
A longer period of notice than the above may be written into the tenancy agreement between tenant and landlord if they wish but the period of notice cannot be any shorter no matter what the tenancy agreement says.
23. So, to bring a tenancy legally to an end, is the serving of a notice to quit all that is needed?
Yes. But ending the tenancy agreement by itself is not enough to oblige the tenant to leave. If the landlord also wants the tenant to leave, he must go on and do the 2nd thing ie serve a notice of proceedings for possession and, eventually, the third thing, obtain a court order.
Second Thing
24. What is a notice of proceedings?
This notice informs a tenant that the landlord intends to start proceedings in court to obtain a court order for possession of his home. It must:
a. set out the ground or grounds on which the landlord is seeking possession; and
b. give particulars of the ways in which he believes that the ground or grounds apply.
25 Does the notice of proceedings have to be in any particular form?
Yes, if the tenant has an assured tenancy which is not a short assured tenancy a special notice (notice AT6) must be used.
If a tenant has a short assured tenancy which has expired, the notice need not be an AT6, although it can be used.
26. What period of notice of proceedings must a landlord give?
a. if the notice specifies:
i. any of the grounds, 1, 2, 5, 6, 7, 9, or 17 (see question 30); or
ii. the landlord is seeking possession because a short assured tenancy has expired, the proceedings cannot be started earlier than 2 months from the date of the notice;
b. in any other case, two weeks notice must be given.
If a landlord serves a notice of proceedings and a notice to quit at the same time a tenant will have 28 days notice since a notice to quit must give at least 28 days notice.
27. How long is a notice AT6 valid for?
A notice AT6 has no effect 6 months after the earliest day on which the proceedings could have been started. This means that under subparagraph a. of paragraph 26 the notice is valid 2 months plus 6 months and under subparagraph b of paragraph 26 - 2 weeks plus 6 months from the date on which it is served on the tenant.
Third Thing
28. In what circumstances will a court grant a landlord an order for possession?
The court will be able to grant an order if the landlord can establish that:
a. one of the grounds for possession as set out in the Housing (Scotland) Act 1988 applies; or
b. the tenancy is a short assured tenancy which has been terminated by a notice to quit.
29. What are the grounds on which possession can be obtained?
The grounds are set out in Schedule 5 to the Housing (Scotland) Act 1988.
Grounds 1 to 8 are mandatory grounds: that is, if they are established, the sheriff must grant an order for possession.
Grounds 9 to 17 are discretionary grounds: that is, even if they are established the sheriff will grant an order for possession only if he believes it is reasonable to do so.
30. . Grounds 1 to 8 what are those mandatory grounds?
If one of the following grounds is established the court must grant the landlord an order for possession.
Ground 1: either:
a. the house was the landlord's only or principal home at any time before the tenancy was granted; or
b. the landlord needs the property for himself or his spouse for use as the principal home of one or both of them and did not become the landlord through buying the house or otherwise acquiring it for value.
This ground will apply only if the landlord gave the tenant notice in writing before the beginning of the tenancy that possession might be recovered on this ground, unless the Sheriff judges it to be reasonable to dispense with this requirement.
Ground 2: There is a mortgage over the house and the lender, for example a bank or building society, is entitled to sell the house because the landlords have not abided by conditions of the mortgage.
This ground will apply only if the landlord gave the tenant notice in writing before the beginning of the tenancy that possession might be recovered on this ground unless the Sheriff judges it to be reasonable to dispense with this requirement.
Ground 3: The house or room was let for a specified period of 8 months or less and was occupied for a holiday during the previous 12 months. (This is likely to be an off season letting of a house which is normally let for holidays during the high season).
This ground will apply only if the landlord gave the tenant notice in writing before the beginning of the tenancy that possession might be recovered on this ground.
Ground 4: The house or room was let for a specified period of 12 months or less and was let to a student by a university, central institution, or other specified educational institution during the previous 12 months. The educational institutions concerned are specified by the Secretary of State. (A bit like ground 3, this is likely to mean that the accommodation has been let by the university or other similar educational institution only because for a time it was not needed for students - for example, out of term-time.)
This ground will apply only if the landlord gave the tenant notice in writing before the beginning of the tenancy that possession might be recovered on this ground.
Ground 5: The house or room is normally held for use by a minister or full-time lay missionary in connection with his work and the sheriff is satisfied that the house or room is again required for this purpose.
This ground will apply only if the landlord gave the tenant notice in writing before the beginning of the tenancy that possession might be recovered on this ground.
Ground 6: The landlord needs to have possession in order to carry out demolition or reconstruction or substantial works on the house, and the work can be carried out only if the tenant gives up possession, or (if the work could have been carried out if the tenant agreed either to a change in the terms of his tenancy or to accept a tenancy of only part of the house) the tenant has refused the alternative. If possession is granted on this ground the landlord must pay the tenant reasonable expenses for removing.
This ground will not apply if the landlord became the landlord after the beginning of the tenancy by buying the house or otherwise acquiring it for value.
Ground 7: The tenancy has been succeeded to by the new tenant under the will or intestacy (disposal of property where no valid will was left) of the original tenant. If possession is sought on this ground proceedings must begin within 12 months of the death of the original tenant or of the date on which the landlord learned of his death. The acceptance of rent from a new tenant will not affect the landlord's right to repossess unless he agrees in writing to a new rent or to a change in the tenancy agreement. This ground does no t apply if a spouse inherits the tenancy under the will or intestacy of a tenant who was the original tenant (that is someone who did not himself succeed to the tenancy).
Ground 8: At least 3 months rent is in arrears both on the date on which the notice of proceedings was served and at the date of the court hearing.
31. Grounds 9 to 17 - what are these discretionary grounds?
If one of the following grounds is established the sheriff may grant the landlord possession, but only if he believes it is reasonable to do so.
Ground 9: Suitable alternative accommodation is available or will be available for the tenant when repossession takes place. What does this involve?
a. A certificate signed by a recognised official of a local authority or Scottish Homes stating that the body concerned will provide suitable alternative accommodation by a certain date will be accepted by the sheriff as conclusive evidence that suitable alternative accommodation is available; or
b. if that type of certificate can not be provided then:
i. an assured tenancy of a separate house with a reasonably similar degree of security of tenure is made available, and is suitable to the tenant and his family in how near it is to the place of work of the tenant and is suitable in its size and rent; and
ii. the alternative accommodation would not be overcrowded after the tenant and his family take up residence.
If the landlord is granted possession on this ground he must pay the tenant's reasonable expenses of removing.
Ground 10: The tenant has given a notice to quit which has expired and yet has stayed on in the house. An order for possession on this ground must be sought by the landlord not later than 6 months after the expiry of the notice to quit.
Ground 11: The tenant has persistently delayed paying rent. This ground still applies even if the tenant is not in arrears at the start of court proceedings.
Ground 12: Some rent is unpaid at the start of court proceedings and at the time of serving of the notice of proceedings.
Ground 13: Any obligation of the tenancy other than the obligation to pay rent has been broken by the tenant.
Ground 14: The tenant has allowed or caused damage to the house or common parts of the building in which the house is situated.
Ground 15: The tenant or anyone living with him has caused a nuisance or annoyance to neighbours or has been convicted by a court of immoral or illegal use of the premises.
Ground 16: The tenant has damaged the furniture or allowed it to become damaged.
Ground 17: The house was let to the tenant because he was employed by the landlord and the tenant is no longer employed by the landlord.
General
32. If the tenant dies, do his family have to leave?
If the husband or wife or anyone living as husband or wife of an original tenant (an 'original tenant' being someone who has not himself or herself succeeded on the death of a tenant to the tenancy) was living in the house immediately before the tenant died, he or she must get the tenancy, which will be a statutory assured tenancy (see question 6).
But, for example the tenancy cannot be passed on after its succession except by agreement between landlord and tenant. For example when negotiating tenancy terms with a landlord a tenant should, if he wants to, try to agree with the landlord on some succession rights for his family.
33. If a tenant leaves the house to live elsewhere does the tenant's spouse have to give up possession of the house?
Not necessarily. The spouse may have a right to remain in the house. In these circumstances legal advice should be sought.
34. Can an assured tenant sub-let part of his house?
Possibly. A tenancy agreement may permit sub-letting or may prohibit it. If sub-letting is not covered in a tenancy agreement, a tenant should consult his landlord to obtain his consent to sub-let.
35. Does the sub-tenant have to leave if the landlord obtains a possession order for the house of the main tenant?
A possession order granted by the sheriff does not extend to any lawful assured sub-tenant. In these circumstances the sub-tenant will become a direct tenant of the landlord and continue to have security of tenure, on the same terms as he had before.