Evicting tenants from residential property

If you have let out domestic property to tenants and now wish to recover possession of the property, we can help. We know what procedures are required when evicting tenants from residential property has become necessary.  It may be that we set up a lease for you in the first place but, even if we did not, we can still help. Most residential tenancies are set up as Short Assured Tenancies.

To qualify as a short assured tenancy, there are certain requirements.

For example, the lease must be for a period of at least 6 months. There is also a special form (Form AT5) which must be served on the tenant no later than the commencement of the tenancy notifying them that the lease is a short assured lease.

To be able to advise you on your right to recover possession of the property, we will need to see (at least) the following documents:

• the lease,
• Form AT5 (served at the outset of tenancy), and
• any notice to quit or “section 33” notice you have served.

We would also want to check with you whether there is a tenancy deposit.

If so, we need to know whether you have complied with your obligation to lodge the deposit in a tenancy deposit scheme. If you have failed to do so, that is a potential complicating factor and it would be advisable to resolve the issue promptly.

What if the lease or notices are defective in some way?

Where the lease and/or notices are defective in some way, in the worst case, it may not be possible to do anything to terminate the tenant’s occupancy. Usually, however, any problems can be cured by the service of fresh notices, though this will inevitably result in a delay in the raising of court action.

If the lease has gone beyond its original period, it will be automatically renewing for fixed periods of time.

Depending on the terms of the lease, this automatic renewal period tends to vary from monthly to annually.

Some grounds for recovering possession of a property are stronger than others.

Raising a court action to terminate the occupancy of a tenant is generally most predictable if the action is based upon ending of the lease because a termination date has been reached.

Many other potential grounds for termination of the lease exist – e.g. rent arrears or “misbehaviour” by the tenant – but seeking to get an order for eviction based on the lease having reached a termination date is the most efficient and effective way of proceeding. This is because the tenant can potentially pay off rent arrears or stop misbehaving – both of which might give them a successful defence to a court action which tries to evict them due to non-payment of rent or antisocial behaviour.

You should not be tempted to try to take the law into your own hands.

If you attempt, without the backing of any court order, to evict a tenant or interfere with their possession of the property, there are possible civil and criminal law sanctions. If a tenant has got into significant rent arrears, it is tempting to think that they have forfeited their right to continue to stay in the property. However, even squatters cannot be evicted from property without a court order.

Assuming appropriate notices have been served successfully, once they expire, if the tenant does not vacate voluntarily, you will need to raise a court action.

Actions for recovery of possession of heritable property are raised in the Sheriff Court under Simple Procedure.

(NOTE: What follows below (under the above heading) must be read subject to what is contained in this article on the G&Y website, concerning changes to court procedures for private residential tenancies from 01 December 2017.  There is now a separate tribunal to deal with the private rented sector).

This is a relatively new procedure (find out full details of Simple Procedure on the Scottish Courts and Tribunals website). The amount to be paid to the court to raise the action is £100 (or check current rates under “Summary Cause and Simple Procedure”).

The court fixes a Timetable and notifies the landlord (here, “claimant”) of it. The Timetable must set out the important procedural points for the initial phase of the case, including (a) the last date for service, and (b) the last date for a response.

The service copy Claim Form must be served upon the tenant (here, “respondent”) at least 21 days before the last date for a response.

In theory, it is possible to shorten the notice period from 21 days to as little as 48 hours. In our experience, courts are reluctant to do that given that what is at stake is someone’s principal residence.

At the time of raising the action, it is necessary for the landlord to notify the local authority of the potential eviction and homelessness of the tenant under section 11 of the Homelessness etc (Scotland) Act 2003. This law gives local authorities early notice of households which are at risk of homelessness due to eviction.

How we can help

Evicting tenants from residential property is an area of Scots Law where there is scope for things to go badly wrong if you do not correctly comply with the formalities. Should you be at the stage where you need to consider removing tenants from a property, it is a good idea to get a solicitor to check your documents before any court action is raised. It is better to have to delay the raising of a court action than bash on only to find that there is a fundamental flaw in your paperwork and the action is thrown out (likely with an award of costs/expenses against you into the bargain).

If you have any questions about any matters raised in this article, feel free to contact us. You can call us on 01343 544077 or send us a Free Online Enquiry. All initial enquiries are free of charge and without obligation.

There is also more information on the “Leasing” section of this website.