With the Private Housing (Tenancies) (Scotland) Act 2016 (2016 Act), which came into force on 1 December 2017, it brought with it the Notice to Leave.

This replaces the Notice to Quit governed by the Housing (Scotland) Act 1988 (1988 Act). Although there are of course similarities between the two, the 2016 Act does provide new grounds allowing for the landlord to serve a Notice to Leave which effectively adapts the previous grounds found within the 1988 Act, but also adds a new ground that allows the landlord to serve a Notice to Leave on the basis that he intends to sell the property.

Discussed below are the grounds which seem on the face of it to allow the landlord the ability to remove the tenant from the property, giving a ground that they may not intend to follow. This information would be useful for a tenant to possess if their landlord attempted to do this without providing any evidence which backs up their ground for serving the Notice to Leave.

Refurbishment

If a landlord serves a Notice to Leave on the ground of refurbishment the landlord will require to provide evidence which demonstrates that the landlord intends to carry out significant refurbishment work to the property. The 2016 Act provides examples of the kind of evidence which is required, that being planning permission or a contract between the landlord and an architect or a builder which concerns the intended refurbishment. Therefore, the landlord cannot simply serve a Notice to Leave on the grounds of refurbishment if he cannot first prove to the tenant that the work to be carried out would result in the property becoming temporarily uninhabitable.

Selling the Property 

The ground relating to the landlord’s intention to sell the property is similar to the ground relating to refurbishment in respect to the landlord being required to provide evidence of his intention to do so. This evidence must show that the landlord intends to sell the property for market value. Alternatively, the landlord can produce evidence that the property will be placed on sale within 3 months of the tenant exiting the property.

The 2016 Act provides examples of what may constitute as evidence, which are as follows:

1. a letter of engagement from a solicitor or estate agent concerning the sale of the let property,

2. a recently prepared document that anyone responsible for marketing the let property would be required to possess under section 98 of the Housing (Scotland) Act 2006 were the property already on the market.’ (Schedule 3, Part 1, Para 1(3) of the Private Housing (Tenancies) (Scotland) Act 2016)

As these are only examples it can be presumed that other evidence will be accepted if that evidence shows that the landlord does indeed intend to sell the property at market value or place the property on the market for sale within 3 months of the tenant exiting the property.

Landlord intends to live in the property or a family member of the Landlord intends to live in the property

The intention of the landlord to live in the property or the intention of a family member to live in the property are in fact separate grounds but have very similar requirements. Under both grounds it must be the party’s intention to live within the property for a period of at least 3 months as their main place of residence. However, this intention is not as easily evidenced as the above grounds as there is quite often no third party involved who can provide evidence of the party’s intention to live in the property. The example provided by the 2016 Act is for the party to provide a signed affidavit stating that the party intends to live within the property as their main place of residence for a period of at least 3 months.

The 2016 Act provides the following for what constitutes as a family member of the Landlord:

‘If the person is –

1. in a qualifying relationship with the landlord,
2. a qualifying relative of the landlord,
3. a qualifying relative of a person who is in a qualifying relationship with the landlord, or
4. in a qualifying relationship with a qualifying relative of the landlord.’ (Schedule 3, Part 1, Para 5(4) of the Private Housing (Tenancies) (Scotland) Act 2016)

A qualifying family member relates to a person who is a ‘parent, grandparent, child, grandchild, brother or sister’ as well as a spouse or civil partner. Relations of half blood are treated as full blood and step children are treated as if they were biological children.

Notice Period

If the tenant has occupied the property for longer than 6 months, the landlord may serve a Notice to Leave on the tenant on any ground stated within the 2016 Act, giving the notice period of 28 days. However, if the tenant has occupied the property as their home for a period less than 6 months, then the notice period given by the landlord must be 84 days. The 2016 Act does provide exceptions to this rule, allowing the landlord to give a notice period of 28 days if the tenant has occupied the property for a period less than 6 months on the following grounds:

1. that the tenant is not occupying the let property as the tenant’s home,
2. that the tenant has failed to comply with an obligation under the tenancy,
3. that the tenant has been in rent arrears for three or more consecutive months,
4. that the tenant has a relevant conviction,
5. that the tenant has engaged in relevant anti-social behaviour,
6. that the tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour.’ (Section 54(3)(b) of the Private Housing (Tenancies) (Scotland) Act 2016)

If the landlord does not comply with the above requirements the tenant can make an application to the First-tier Tribunal for Scotland who can then make a wrongful termination order if it can be shown that the tenant was misled into exiting the property.

To view the First-tier Tribunal for Scotland’s information on how to make an application, go to https://www.housingandpropertychamber.scot/apply-tribunal.

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