In a recent Upper Tribunal (UT) decision, the UT looked again at the question of the validity of Notices to Leave where there were errors or omissions in the notices and, in particular, to what extent a failure to complete all parts of the prescribed form for the notice to leave (NTL) would invalidate the effect of that NTL for the purpose of seeking an eviction order. The decision itself can be found using this link
Why is the NTL important?
In terms of section 52(3) of the Private Housing (Tenancies)(Scotland) Act 2016 (the 2016 Act), a tribunal cannot even “entertain” any application for an eviction order unless that application is accompanied by a copy of the NTL given to the tenant.
What is meant by a NTL?
In terms of section 62(1) of the 2016 Act, a NTL must meet 4 requirements. These are:
- That it is in writing;
- That it specifies the day the landlord expects to be entitled to make an application for an eviction order to the tribunal.
- That it specifies the eviction ground(s) the landlord seeks to rely upon.
- That it fulfills any other requirements prescribed by the Scottish ministers.
In relation to that last of these requirements, that means using the prescribed style for a NTL.
What did the UT look at in the decision?
The issue before the UT arose following an appeal from the First-tier Tribunal who had granted an eviction order based on a NTL which had not been completed fully. In short, the landlord in this case had failed to put any information in part 3 of the NTL about the reasons for seeking an eviction order and any evidence in support, but they had ticked the box in part 2 of the NTL specifying that the basis for eviction was that the landlord intended to sell the property concerned. The tenant argued that the failure to do so was a material error which rendered the NTL invalid and therefore it could not form the basis of an application for an eviction order. The landlord argued, with reference to section 73 of the 2016 Act that the error was a minor one in that it did not “materially affect the effect” of the NTL.
What did the UT decide?
Whilst the UT specified that the NTL must be in the prescribed style, in order to answer whether this particular NTL was invalid or not, the UT then looked at the “effect” of the NTL which the UT described as being “synonymous with ”purpose””. What was said was:
“..the primary purpose and effect of the notice to leave is to correctly provide three important pieces of information to the tenant. First, the notice confirms the ground or grounds upon which the landlord seeks to rely in requesting that the tenant leave the property. Secondly, it confirms the statutory notice period which must be observed in giving notice to leave. Third, it informs that the tenant that should he or she choose not to leave the let property on the date shown in the notice that it is the landlord’s intention to apply….for an eviction order and provides the date from which such an application can be made.”
When looking at this particular NTL and the fact that it was based on ground 1 (that the landlord wanted to sell the property), the UT decided that, even though part 3 of the NTL had not been completed at all, the NTL still fulfilled its primary purpose and therefore the error in failing to do so was an excusable one under section 73 of the 2016 Act in that it there was no material affect on the effect of the NTL.
Does that mean part 3 of the NTL is not important?
The answer to this question is a resounding “no”. Whilst the UT took the view in this case that the failure to complete part 3 was excusable, that was only on the basis that the tenant had still received fair notice of the landlord’s intention and the reasons an eviction order was sought and that in these particular circumstances the NTL still fulfilled its purpose. The UT went further and stated specifically that completing part 3 of the NTL prescribed style was not “an optional exercise” and that there will be circumstances where that will absolutely be required and cited, as an example, where rent arrears were being relied upon as a basis for seeking an eviction order. Indeed, there have been multiple First-tier Tribunal applications based on rent arrears that have been rejected for this very reason as well as UT decisions in a similar vein.
What lessons can be learned?
Put very basically, where there is a statutory form like the NTL, then care should be taken to complete all parts of the prescribed form as far as necessary. What will be required will vary depending on the particular facts and circumstances, but rather than get it wrong and then having to try and rely upon section 73 of the 2016 Act as a “get out of jail” card, it is better to be “safe rather than sorry”. It is almost certainly the case that, with rent arrears cases, a failure to at very least specify the total arrears and the dates over which they have occurred (even by reference to a rent statement produced with the NTL) will render a NTL invalid. Likewise, with other grounds for possession such as claims that tenant has breached the tenancy agreement (other than by a failure to pay rent) or even claims of anti-social behaviour, a landlord will have to set out sufficient information in Part 3 of the NTL to allow the tenant (and the tribunal) to understand what the breach or behaviour complained of is and how it is said to have occurred.
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