Recovering Possession when Private Tenants Abandon a Property

Author: Mitchells Roberton
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How does a landlord recover possession of a property which has been abandoned by a private tenant?

The options available depend on the type of tenancy in place.

  • Assured or short assured tenancies

Most private residential tenancies beginning before 1 December 2017 are either an assured tenancy or a short assured tenancy.  No specific legislation actually addresses abandonment of such tenancies, so the first place to start would be to read the tenancy agreement which will probably have a condition in it obliging the tenant not to leave the property unoccupied for more than a set period of time without the landlord’s consent. The Housing (Scotland) Act 1988 sets out the grounds on which a landlord may recover possession early. Ground 17 is that the tenant has breached a term of the agreement.  If the property has been unoccupied for more than the set period of time then the tenant is in breach and the landlord can serve a notice to terminate the tenancy and then make an application to the Housing and Property Chamber of the First Tier Housing Tribunal for eviction once the statutory notice periods have expired. The Tribunal will not make an order unless it is satisfied that it is reasonable to do so. The tribunal will look at matters such as the tenant’s behaviour before and after the breach, any alternative accommodation available to the tenant and whether the tenant has been given the chance to return to the property and rectify the breach of contract.

  • Private Residential Tenancies

A private tenancy of residential property which commenced on or after 1 December 2017 will most likely be a Private Residential Tenancy (PRT) in terms of the Private Housing (Tenancies) (Scotland) Act 2016. If it is a PRT then there is a statutory ground for eviction on the basis that the tenant has abandoned the property. In terms of Paragraph 10 of Schedule 3 of the 2016 Act, the tribunal must find that the tenant has abandoned the property if:

  • The property is not being occupied as the only or principal home of the tenants or their subtenants and
  • The reason the property is unoccupied is not due to the landlord’s breach of their repairing obligations. The landlord will need to prove this to the tribunal before the tribunal will issue a notice of eviction.

With PRTs there is no consideration of reasonableness as there is for assured or short assured tenancies.  A landlord wishing to raise proceedings must serve a ‘Notice to Leave’ and give the statutory period of notice to the tenant.

If I can help with any questions regarding residential tenancy agreement please contact me Alison Gourley on 0141 552 3422 or by email ajg@mitchells-roberton.co.uk

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