A recent Upper Tribunal decision has given Scottish landlords and letting agents an important reminder: a technical defect in a Notice to Leave may not be enough to protect a landlord from a claim of Wrongful Termination.
The case arose because a landlord under a private residential tenancy (PRT) sent a Notice to Leave by email despite there being no agreement in relation to electronic service of such notices, the tenants left the property, and the tenants later applied for a Wrongful Termination Order under section 58 of the Private Housing (Tenancies) (Scotland) Act 2016 (2016 Act).
What was the landlord’s argument?
It was argued on behalf of the landlords that because the Notice to Leave had been sent by email without an express consent for email service, it could not have been validly “received” in terms of section 50 of the 2016 Act. That therefore meant that, if the notice was not validly received, then the tenancy could not have been brought to an end in accordance with section 50, and therefore the former tenants could not bring a Wrongful Termination claim under section 58.
The Upper Tribunal refused permission to appeal and rejected that argument. The decision itself can be found here:
https://www.scotcourts.gov.uk/media/hkmlmta3/2026ut59-decision-permission-to-appeal-250165.pdf
Does this matter?
Much of the discussion around Notices to Leave has tended to focus on technical compliance, for example using the correct ground(s), correct dates, correct form, and correct service. This decision does not mean those requirements are irrelevant. A defective notice may still be defective for the purposes of obtaining an eviction order, but not necessarily for other purposes.
The Tribunal drew a distinction between:
- whether a notice is valid for eviction purposes; and
- whether a tenant can seek a Wrongful Termination Order after being misled into leaving.
What is the purpose of section 58?
The Tribunal focused on section 58(3), which allows a tribunal to make a Wrongful Termination Order where a tenant has been “misled” into ceasing to occupy a property.
The Upper Tribunal said that, if the intention of section 58 was to protect tenants who were misled into leaving a property, it would be odd if a landlord could avoid liability simply by pointing to a defect in their own notice that induced the tenant to leave.
The Tribunal went on to say that it would be “….clearly be a perverse situation…” and “…inconsistent with the protective purpose of section 58(3)” if a landlord could rely on their own failure to comply with the service requirements in order to defeat a tenant’s claim.
Does this mean what the lease says about service isn’t important?
The Tribunal did not decide that email service will be valid for all purposes regardless of the provisions of the lease itself. In fact, it accepted that the tenancy agreement did not contain an express provision authorising electronic service of notices.
What was accepted was that the tenants had actually received the email and acted upon it, and that this was sufficient for the purposes of considering a Wrongful Termination claim in that tenants could also be misled by “…the method of service rather than simply the contents…”.
What is the test for Wrongful Termination Orders?
The Tribunal referred to the earlier Upper Tribunal decision found here:
https://www.scotcourts.gov.uk/media/whukx1yj/2024ut45.pdf
and summarised the four-part approach set out in that case. That is:
- The landlord has made a representation that there was a basis for the tenancy ending;
- The representation was objectively misleading;
- The tenant was actually misled; and
- The misleading representation materially caused the tenant to leave.
The test is therefore wider than simply asking whether a Notice to Leave was valid. The misleading representation could potentially be found in an email, a letter, a conversation, or other communications.
What does this all mean in practice?
So, in relation to PRTs, the position is:
- For eviction proceedings: use the method of service that is provided for in the lease itself.
- For wrongful termination claims: a landlord may still face liability even if the notice was technically defective.
If you require any further information or advice, please contact us or watch our blogs for further updates.
