November 2021 – Evict with Care – Private Residential Tenancies

Author: Willie Grant
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A case decided in September by the “First-tier Tribunal for Scotland Housing and Property Chamber” (“the Tribunal”) shows that care is need when a landlord wants to get back a residential property which has been let privately. (Chamber Ref: FTS/HPC/PR/21/0301)

Evicting tenants from Private Residential Tenancies

  • A private (as opposed to public sector) residential tenancy that starts on after 1 December 2017 will be a “Private Residential Tenancy” (“PRT”) under the Private Housing (Tenancies)(Scotland) Act 2016.
  • There are three ways in which a PRT can be ended: (1) by the tenant giving notice and leaving the property, (2) by the landlord giving notice and the tenant leaving voluntarily, or (3) by the landlord who, after serving notice and finding that the tenant has not left voluntarily, seeks an eviction order from the Tribunal.
  • It should also be competent, as a matter of contract law, for the tenant and landlord to agree some different voluntary termination of the lease, but this would not be a route under the legislation and care should be taken when doing this, especially to ensure the terms are clear on both sides.
  • If the landlord wants to obtain an eviction order they must first send a written “notice to leave” to the tenant.  There are 18 “grounds” for eviction that a landlord can use and the notice to leave must state which particular ground the landlord is using.
  • One of the grounds is that “the landlord intends to live in the let property”. Another of the grounds is that “the landlord intends to sell the let property”.
  • The period of notice which a landlord must give differs depending on which particular ground is chosen: where the landlord intends to live in the property the period of notice is three months; but where the landlord intends to sell the property the period of notice is six months.

The issue in the case decided by the Tribunal

  • In this case, on 3rd December 2020, the landlord gave the tenants a notice to leave on the ground that the landlord intended to live in the property. The notice gave the tenants until 6th March 2021 to leave.
  • The tenants were upset about getting a notice to leave but managed to find other accommodation quickly and so, on 18th December, they then served their own notice to terminate the tenancy and so the tenancy ended on 13th January 2021.
  • On 2nd February 2021, just 19 days after the landlord moved into the property, he instructed estate agents to sell it and the sale completed on 30th March 2021.
  • The issue for the Tribunal was really this: did the landlord really mean to live in the property himself or did he just want to get it back so as to sell it? If he just wanted to get it back so as to sell it then there would have been a “wrongful termination” of the tenancy.

Wrongful termination and sanctions

  • There is a financial disincentive to discourage landlords from misleading the Tribunal into granting an eviction order or misleading their tenants into leaving the property: doing so is known as a “wrongful termination”. There is provision for a payment to the ex-tenant of a sum not exceeding six months’ rent and no time limit for claims is specified.

The Tribunal’s decision

  • The Tribunal said:

“The [tenants’] position is that if they had not received the notice to leave dated 3 December 2020 they would still be living in the property. They say that they only sought alternative accommodation because the notice to leave gave them until 6 March 2021 to vacate the property…

We asked the [landlord] to explain why he had such a significant change of heart between 13 January 2021 and 2 February 2021. In just 19 days, the [landlord’s] position changed from recovering possession of the property so that he could use it as his own home, to selling the property on the open market. That is such a significant change in intention that it is realistic to expect the [landlord] to be able to explain what happened in 2½ weeks to create such a radical change in his intentions. The problem for the [landlord] is that he cannot give a coherent explanation for such a significant change of heart… 

On the facts as we find them to be, the [tenants] only brought the tenancy of the property to an end because they received the notice to leave stating that the [landlord] wanted to recover possession of the property so that he can use it as his own home.

On the facts as we find them to be, 19 days after recovering the property the [landlord] marketed it for sale. The only realistic conclusion that we can reach is that the respondent misled the [tenants] … Because we reach that conclusion, we make a wrongful-termination order.”

The Tribunal ordered the landlord to pay the ex-tenants £2,400 within 14 days.

Conclusion

The conclusion must be to tread warily when it comes to notices to leave. One cannot help suspecting that in this case notice to leave was given on the supposed ground that the landlord wanted to live in the property himself for which the notice period was three months. Whereas, if he had given notice on the ground that he wanted to sell the notice period would have been six months.

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 Euan David: email efd@mitchells-roberton.co.uk

Willie Grant

About Willie Grant

Willie graduated from Cambridge University with an M.A. in English Literature in 1978. He then undertook Basic Army Training, passing the Regular Commissions Board before embarking on a legal career by sitting the Law Society of Scotland exams. In his Diploma in Professional Legal Practice Willie won the Law Society Prize in Wills, Trusts and Executries and the Joseph Mellick prize in Advocacy and Pleading. He first joined Mitchells Roberton as a private client partner in 1991 remaining there until 2002 before being called to the Bar. In 2005 Willie returned to Mitchells Roberton as a full time consultant and knowledge management adviser. He provides in-house advice to Partners and staff, drafting letters of advice for clients and bespoke drafting. Willie is a member of the Society of Trust and Estate Practitioners; a part-time tutor on the Diploma in Legal Practice at Glasgow University; a member of the Law Society of Scotland Trust and Succession sub-committee; a member of the Advisory Group for the Scottish Law Commission Trust Review Project; and co-authored, with James Kessler QC, the recently published Drafting Trusts and Will Trusts in Scotland described in its foreword by Lord Tyre (one of the Senators of the College of Justice) as “a milestone in the expression and development of Scots trust law.” A review of the book as appeared in the May 2014 edition of the “Scottish Private Client Law Review” (published by W Green) can be found here. Email: wmcg@mitchells-roberton.co.uk

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