tenant evicting procedure in Scotland

paul332

I have a flat that is on rent in Scotland. The agreement was signed on 12th February 2016 based on short assured tenancy and the end date noted on the agreement was 31st August 2016. No specific notes were there on what to do after this date. The agreement simply says the landlord has an option to give you a new lease at the end of the contract.

At the end of this contract I verbally agreed with the tenants to stay and they have been my tenants since.

Unfortunately the tenants now have arrears and it does not seem like they can afford to make monthly payments anymore. I tried my best to sit down with them and agree on some arrangements but find it very difficult to get hold of them.

I have a few questions and appreciate advice on them:

1. My understanding is that in Scotland, a lease based on short assured tenancy will automatically role over for another period (here 6 months) till it is terminated by the landlord or tenant, is this correct?

2. I assume that the new Private Residential Tenancy does not apply here because the lease was signed before 1st December 2017. Is this also correct?

3. If I want to process eviction, my understanding is that I need two forms together: Notice of Quit and Section 33 Notice. Two months is the minimum time that I should give to my tenants. Again, is this correct?

4. I am a bit confused about the application of Section 33 notice in my case. It says: "I/we* require vacant possession as at ... . The tenancy will reach its termination date as at that date"
But I want to give my tenants 2 months notice from now to evict rather than waiting till the next end of lease date which I presume is 31st August 2018. Does this mean I should only send Notice of Quit or should I change the wording of section 33 notice and remove the part that says "The tenancy will reach its termination date as at that date"?

I really hope that my tenants will manage to come with a reasonable arrangement for payments, but would like to prepare legal documents right now in case I need to use them.

Apologies for too many questions, I really appreciate if people help me with these inquiries.

Paul

theartfullodger

Advise your tenants to call Shelter Scotland 0808 800 4444 for advice. You appear to have little knowledge of Scottish landlord/tenant law and they thus should be safe there for quite some time.

Ask your landlord association for advice.

pinklady21

I assume you issued an AT5 form before the start of the tenancy, as well as the Tenancy agreement?
This is very important, if you did not, or cannot prove that you did, then a Short Assured Tenancy has not been created, but an Assured Tenancy instead. Which is different, and may make it more difficult to evict them.
Assuming you have created the SAT correctly, you then need to bring it to an end correctly by serving an AT6 form and a valid notice to quit.
Note the use of the word "valid"!

Usually a SAT will "roll over" if it is not renewed. It depends on what is in your lease for what the new lease period is. It may be a rolling month to month, or not.

As a landlord, you need to give at least 2 months notice to quit, ending after the end date of the TA and need to give the grounds for eviction. You may not yet be at the 3 months arrears, for mandatory ground so probably better to use an alternative mandatory ground for eviction. You did note the grounds in the original TA didn't you?

You did ensure any deposit was properly protected, didn't you?

You are correct, Private Residential Tenancies are irrelevant as they only started on 1st December 2017.

Your tenants may agree to play ball- they may even pay up the arrears. If they do not, your option is to go to the First Tier Tribunal to seek an order for possession.

While I am a landlord in Scotland, I have limited experience of going through the eviction process, so I would strongly recommend that if you are not sure of your ground here, get some advice from SAL Scottish Landlord Association. Very reasonable fees (tax deductible), good helpline, and excellent range of training courses.
Best of luck.

theartfullodger

Beware dates and the Ish. (Yes, correct spelling)

bris

Don't use an AT6 unless there is 3 clear months arrears, even if there is and they bring it back under this at the time of the hearing then it's not guaranteed they will be evicted.


Use a Notice to quit and a section 33 notice delivered by sheriffs officers. The notices should be served together giving at least 2 clear months (minimum 60 days). This makes it a no fault mandatory eviction, no wiggle room.
To make sure you get this right have the forms sent before the 31st making the end of the tenancy the 13th of June.
The First Tier Tribunal, https://www.housingandpropertychamber.scot/ now handles these cases, use a "Form E" for the eviction and a "Form F" for the arrears.


Without seeing the tenancy agreement I can't tell whether the tenancy has rolled to monthly or not. If no then it gets a bit tricky and you really should get legal advice in this case.


There are samples available of how to fill in the notice to quit and section 33 notice but you really need to get them right.


The tribunal will need to see everything, the AT5 is a must, if you don't have one then you definitely need legal advice.


P.S SAL do not give legal advice and do not help with evictions.
Another P.S I forgot to mention, the first tier tribunal also need to see proof you served the local councils homeless team with a Section 11 notice at the start of the eviction process so that's after the notice to quit and section 33 expires if the tenant don't leave.

Pixie5740

You will need to check the original tenancy agreement. If it was silent on what will happen at the end of the fixed term then it will automatically renew itself with the same T&C as the original tenancy agreement, this is called tacit relocation. Oddly the original tenancy agreement was for 6 months and 20 days so if the original tenancy agreement didn't specify that it would move to monthly periods then it's been renewing for 6 months and 20 days since 1st September. That's going to make finding the ish date a PITA.

You will need to check that you gave the tenants an AT5 form before signing the tenancy agreement or there will be an Assured Tenancy in place rather than a Short Assured Tenancy which will make it more difficult to evict the tenants. The eviction process is slightly different for Assured Tenants and you will need a ground, such as arrears, to evict.

How far in arrears are the tenants? At least 3 months?

Pixie5740

[STRIKE]If you do go down the route of evicting due to arrears there are certain steps you must take first.

From Shelter Scotland.

Your landlord must follow these steps before they can start a rent arrears eviction action:

give you clear information !!!8211; about the terms of your tenancy agreement, the rent you pay, or any other cost you owe your landlord
offer you help and advice !!!8211; your landlord has to make reasonable efforts to give you help and advice regarding housing benefit or other forms of financial help
help you with debt management !!!8211; your landlord should give you information on where to get help with managing your debts
try to agree a payment plan !!!8211; you landlords should try to agree a payment plan with you.
not to start an eviction action before considering:
any housing benefit applications !!!8211; and whether this will help you to pay off your arrears
your actions - steps that you are taking which could result in you paying off your arrears in a reasonable time
any payment plan - whether you are sticking to the terms of any agreed repayment plan
encourage you to contact the council!!!8211; if your landlord is not the council then you should be made aware of what help is available from your council.
Only after your landlord has followed these pre-action requirements can they start an eviction action for rent arrears. If the case goes to court the sheriff will have to consider the factors listed below before deciding if it is reasonable to grant an eviction order.

Factors the sheriff will take into account include:

the amount of the arrears
the likelihood of your being able to repay the arrears and meet future rent repayments
the reasons for the arrears arising, for example, illness, sudden loss of employment or problems with housing benefit
what the landlord has done to try to collect the arrears
what the consequences of eviction will be for you and your family, for example, will you be homeless and how easy will it be for you to find new accommodation?
the length of time you have been a tenant and your record as a tenant before the arrears arose
if you have a joint tenancy, whether only one of the tenants is responsible for the arrears - in this case an 'innocent' tenant who has been paying their share of the rent may not be evicted.[/STRIKE]

Edit: I am an eejit! :doh:

AnotherJoe

I'm surprised it doesn't say the LL must pop round every evening and tuck the tenants into bed as well.

Who in their right mind would want to be a LL in Scotland given that lot ?

Pixie5740

AnotherJoe wrote: »

I'm surprised it doesn't say the LL must pop round every evening and tuck the tenants into bed as well.

Who in their right mind would want to be a LL in Scotland given that lot ?

Yet there are still people clambering on to the BTL train and that's even after the introduction of the new Private Rental Tenancy agreement introcuded 1st December 2017.

davidmcn

AnotherJoe wrote: »

I'm surprised it doesn't say the LL must pop round every evening and tuck the tenants into bed as well.

Who in their right mind would want to be a LL in Scotland given that lot ?

As far as I can see those criteria only apply to secure tenancies though i.e. social landlords.

Pixie5740

davidmcn wrote: »

As far as I can see those criteria only apply to secure tenancies though i.e. social landlords.

Good point well made. I just saw the "short" and thought Short Assured Tenancy. :doh: