Tenant refusing to leave, help needed URGENTLY

theartfullodger

Was original initial term 6months- exactly - or longer or shorter?

Is there a deposit? Protected? Prescribed information served in a way you prove you served it?

fionamacf1

It was 6 months exactly, we did not protect the deposit as I thought for tenancy's that commenced before a certain date we were not obliged to protect the deposit until 13 Nov, as the date she was due to leave the property was 22 Oct the SAT is no longer in effect. I am not sure about the last point I have just made though

theartfullodger

fionamacf1 wrote: »

notice to quit, section 33 notice were sent by recorded delivery and delivered by hand. She and the council then lost her copy and I had to supply another copy which she confirmed she had received by text and then the council have also confirmed receipt of. The AT6 was served by recorded delivery and by hand

OK - so as long as you still have proof (copy of Royal Mail delivery online-screen) of delivery that bit is OK. However if sent by recorded delivery but not delivered ... problem...

Delivered by hand & confirmed by text makes complete sense but a cunning lawyer could get the case chucked out if that was your ONLY method of service, which is why recorded-signed/Sheriff-officers for matters {relevant legislation Sheriff Courts (Scotland) Act 1907 )

It was 6 months exactly, ...

Ah: maybe a problem: Legislation is that SaT must be AT LEAST 6 months so exactly-six-months but tenant only walks in at (say) 11:00am means it is less than 6 months. Your case outcome will depend on how smart tenant's lawyer is & Sheriff's position {it's a tricky area.. probably depends on exact tenancy wording...}. If it ain't a SaT you can't just evict for no reason .. you'd have to use, say, rent arrears...

...we did not protect the deposit as I thought for tenancy's that commenced before a certain date we were not obliged to protect the deposit until 13 Nov, as the date she was due to leave the property was 22 Oct the SAT is no longer in effect. I am not sure about the last point I have just made though

This could be a problem ... see Shelter's handy guide...
http://scotland.shelter.org.uk/get_advice/advice_topics/paying_for_a_home/deposits/protecting_your_deposit

Deposit paid before 7 March 2011
If you paid your deposit before 7 March 2011 and the tenancy is renewed between the dates of 2 October 2012 and 2 April 2013 your landlord had to register you deposit within 30 working days of the renewal. If your tenancy is not renewed within these dates then your landlord will have to register your deposit by 15 May 2013.
Deposit paid on or after 7 March 2011 and before 2 October 2012
If you paid your deposit on or after 7 March 2011 and before 2 October 2012 your landlord will have to to register you deposit by 13 November 2012
Deposit paid on or after 2 October 2012
If you pay your deposit on or after 2 October 2012 then your landlord has to register your deposit within 30 working days of the tenancy starting.

If you missed the deadline tenant can sue you .. see...
http://scotland.shelter.org.uk/get_advice/information_for_landlords/tenancy_deposit_schemes#11

If you don’t use a tenancy deposit scheme your tenant can apply to the sheriff court either during the tenancy or up to three months after it has come to an end. The court can order you to pay your tenant up to three times the amount of the deposit and to fulfil the requirements of the tenancy deposit scheme regulations.

Please let us know when tenancy started (exact date) and how it was rolled on (tacit relocation or clause in tenancy agreement). I fear you have missed the boat..

I had a vague recollection that, like England, failure to protect deposit meant NTQ etc was invalid but I can't find anything that confirms this so hopefully you can ignore that.

The "date she was due to leave" is irrelevant: Tenancy carries on until sheriff court possession order & sheriff's officers carry tenant out: Until then tenancy deposit regulations apply...

Think you need to talk to either SaL or a SPECIALIST LL/Tenant solicitor such as TC Young (I do not work for them nor am I a client..)

Cheers!