July 2021 – Residential Tenancies & Notices to Leave

Author: Mitchells Roberton
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Background

  • New residential tenancies are now called “private residential tenancies” or “PRTs” under the Private Housing (Tenancies)(Scotland) Act 2016 (“the Act”).
  • If a landlord wants to terminate a PRT there is some scope for mutually agreed termination where the tenant has received a notice to leave from the landlord and moves out without requiring the landlord to obtain an eviction order. But except in a case where that happens the landlord must get an eviction order from the “First-tier Tribunal” (“the Tribunal”).
  • The Tribunal is to issue an eviction order if it finds that one (or more) of the statutorily prescribed “eviction grounds” applies.
  • An application to the Tribunal must be accompanied by a copy of the “notice to leave” which has been given to the tenant and that “notice to leave” must specify the ground on which an eviction order is sought.
  • A landlord cannot make an application to the Tribunal for an eviction order until the expiry of the relevant notice period in relation to the notice to leave. In general, the relevant notice periods are 28 days if the tenant has been entitled to occupy the property for six months or less, or 84 days if the tenant has been entitled to occupy the property for more than six months. (Owing to the Coronavirus pandemic notice periods have been extended and something is said about that at the end of this note.)

A case concerning “notices to leave” and notice periods before the Tribunal

  • Specifying dates in notices to leave can be surprisingly tricky as illustrated in a case reported in April this year – where the relevant notice period was 28 days. In outline:
  • The landlord of a property gave “notice to leave” to his tenants on 28 November 2019. The notice was delivered to the tenants by sheriff officers and specified 27 December as the first date on which an application for an eviction order could be made to the Tribunal.
  • Accordingly, the landlord considered that the requirement for the necessary 28 day notice period was satisfied in that there are 28 clear days between 28 November and 27 December.
  • But the Tribunal refused the landlord’s application for eviction on the basis that the Act said that it was to be “assumed” that the “notice to leave” would be received by the tenant “48 hours after it is sent”. If that assumption applied then the tenants could not be taken to have received the “notice to leave” until 30 November.
  • And, if that assumption applied then the date specified by the landlord – 27 December – as being the first date on which an application for an eviction order could be made to the Tribunal would have been wrong. It should have been stated as 29 December i.e. 28 clear days after 30 November being the date on which, in terms of the Act, the tenants were to be assumed to have received the notices to leave.

Appeal to the Upper Tribunal ([2021] UT 20)

  • The landlord appealed against the Tribunal’s decision and the landlord won.
  • One of the key reasons for the First-tier Tribunal holding that the notice to leave was defective was the fact that the Act said that it was to be “assumed” that the “notice to leave” would be received by the tenant “48 hours after it is sent”.
  • The First-tier Tribunal found that even if it could be proven that the notice was in fact received sooner the Act required one to disregard that. The First-tier Tribunal’s view was that if there was a statutorily prescribed “assumption” that could not be contradicted.
  • In particular, the Upper Tribunal did not accept that proposition. On the facts of this case – where delivery of the notices to leave had been made by sheriff officers rather than by post – the 48 hour “assumption” provided for in the Act did not apply. So the notices to leave served by the landlord were valid.

Conclusion

  • In hindsight the decision of the Upper Tribunal seems unsurprising. But such cases highlight the fact that notices to leave, dates for applying for eviction orders and methods of serving such notices can all prove tricky.

Postscript – Coronavirus (Scotland) Act 2020

Under the Coronavirus (Scotland) Act 2020 there is an emergency law to protect tenants during the coronavirus pandemic. This temporary law applies to all eviction notices issued on or after 7 April 2020 and the measure has now been extended until 30 September 2021.

In most cases, the temporary law means landlords must give a tenant up to 6 months’ notice to end a tenancy. In a few cases it is however 3 months or 28 days: the shortest are where the tenant is no longer living in the rented property; and where a criminal conviction or anti-social behaviour is involved.

Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: email Paul@mitchells-roberton.co.uk

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