Outline of Recovery of Possession of Private Sector Residential Tenancies

Author: scott
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Tenancies (like people) come in all shapes and sizes. But when it comes to private sector residential tenancies they are usually either ‘assured’ tenancies or ‘short assured’ tenancies (both) under the Housing (Scotland) Act 1988 (‘the 1988 Act’).

Introduction 

  • There’s a bit of over-simplification above. Some residential tenancies aren’t either ‘assured’ or ‘short assured’. For example, a tenancy where the landlord is resident or where the letting is for a holiday will not (usually) count as either an ‘assured’ or ‘short assured’ tenancy. And there are other exceptions. But the vast majority of private sector residential tenancies will be either ‘assured’ or ‘short assured’. This Note concentrates on the extent of a tenant’s ‘security of tenure’ under such tenancies. 
  • Tenancies start off as a contract between landlord and tenant. Essentially the landlord will give the tenant the right to live in the property in question for a particular length of time in exchange for a rent. The initial period will vary but will often be for six months. At the end of that initial period the tenancy will automatically carry on for successive six month periods unless one or other party gives due notice that it is to come to an end. This automatic continuance of the tenancy is referred to in legal jargon as ‘tacit relocation’.  
  • Alternatively, the tenancy agreement may provide that, after the first six months, the tenancy will then keep on renewing automatically from e.g. month to month: referred to in legal jargon as ‘express relocation’. This may well be preferable to ‘tacit relocation’.  
  • The important point for ‘assured’ and ‘short assured’ tenancies is that even if due notice is given by a landlord to prevent the tenancy’s automatically continuing (under ‘tacit relocation’ or ‘express relocation’ as the case may be) the tenant – if they don’t move out of their own accord – will then have a statutory tenancy under the 1988 Act. It will then be necessary to get a court order to recover possession of the property. 
  • That may sound alarming. But in many cases the tenants will be co-operative and simply move out having been given due notice. In many other cases the court will be bound to grant an order for ‘recovery of possession’ by landlord: in other words the landlord can be reassured that – assuming his or her tenancy paperwork is in order – the court will have to order that the tenant must go. But in order to ensure that is so the paperwork needs to be right. With that brief introduction this Note looks, in turn, at (i) ‘assured’ and (ii) ‘short assured’ tenancies. 

(i)           ‘Assured’ tenancies 

  • In broad terms the main difference between ‘assured’ and ‘short assured’ tenancies is that under the ‘short assured’ the landlord can always ‘recover possession’ at the end of the initial contractual term – whether it be six months or longer – provided all the relative paperwork is in order. But, with an ‘assured’ tenancy matters are usually more complex and uncertain. 
  • So the general rule is to advise a landlord that he or she grant a ‘short assured’ tenancy – not an ‘assured’ one. But if something goes wrong with the paperwork required to set up a ‘short assured’ tenancy it is easy enough to end up – unintentionally – with an ‘assured’ tenancy and the problems that may entail. So it is worth saying something about the less common ‘assured’ tenancies before moving onto the more common ‘short assured’ type. 
  • An ‘assured’ tenancy will (generally) be for a specified initial period – say a year. If the landlord is quite happy with the arrangement, and does not serve due notice terminating the contract, then it will carry on from year to year under ‘tacit relocation’. 
  • If however a landlord wants to bring the contractual tenancy to an end he serves a formal ‘Notice to Quit’ having effect as at an anniversary of the tenancy. If the tenant does not move out of his own free will then the tenant will thereafter have a ‘statutory tenancy’ under the 1988 Act and the landlord will only be able to ‘recover possession’ if he has served a formal notice (known as an AT6) and gets a court order. 
  • There are certain grounds (if established) on which a court must grant such an order (for example where the house let was previously the landlord’s main residence); and there are other grounds where the court may grant an order (for example, where the tenant has consistently delayed in paying rent). As far as some of those grounds are concerned the original tenancy agreement must expressly refer to the possibility of recovery of possession on the ground in question (for example, where there are three months’ rent arrears). 

(ii)           ‘Short assured’ tenancies (‘SATs’) 

  • With short assured tenancies the paperwork must be right. But if it is there’s less uncertainty about recovering possession as compared with an ‘assured’ tenancy. The main points are:
    • the initial term of a SAT must be not less than six months; and
    • a prescribed notice (called an AT5) must be duly served before the tenancy is created specifying that it is a short assured tenancy. 
  • It is important never to allow a tenant either to move into a property or take any rent from them before both the AT5 Notice is duly served and the lease is signed or its ‘short assured’ tenancy status will be prejudiced. 
  • If a landlord then wants to recover possession he must serve a ‘Notice to Quit’ in proper form terminating the tenancy contract. 
  • The landlord will also serve another notice (under section 33 of the 1988 Act) on the tenant stating that the landlord requires possession of the house and, as long as the relative paperwork is in order, the court must make an order for possession. 
  • Of course, if the tenant co-operates and moves out of his own free will in response to the ‘Notice to Quit’ a court order will not in fact be required. 
  • It is usually safest to give at least 40 days’ notice for the ‘Notice to Quit’ and at least two months’ notice is required for the additional ‘recovery of possession’ notice. The notices may be served at the same time. 

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 Yvonne Robertson: yer@mitchells-roberton.co.uk

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