12 Apr 2019
Adam Gardiner, Solicitor in Lindsays’ Dispute Resolution and Litigation team, discusses the options open to private landlords to assist with recovering possession of a property when a tenant no longer stays there.
A landlord who finds that a tenant may no longer be living in their property may want to take it back. However, the terms of the tenancy agreement could still be binding and the landlord obliged in terms of the lease to continue to provide the tenant with the accommodation. This is regardless of the fact that the tenant may not be using it. If the landlord prevents the tenant from accessing their accommodation then the tenant may raise tribunal proceedings against the landlord for statutory damages (and/or possibly damages for breach of contract) in terms of Section 36 of the Housing (Scotland) Act 1988.
Separately, it is a criminal offence for landlords or their agents to unlawfully deprive a tenant of occupation of rented property (Section 22(1) of the Rent (Scotland) Act 1984). The only defence to a charge of unlawful eviction is that the landlord believed and had reasonable cause to believe that the tenant had ceased to reside in the property.
So what can be done to recover possession of the property? Generally a landlord can not recover possession of a property which is still occupied unless they retain an order from the Housing and Property Chamber of the First Tier Tribunal allowing them to do so. The landlord is best advised to serve the appropriate notices and thereafter to raise tribunal proceedings even when they suspect that the property is abandoned (unless they follow the procedure set out below). The options available depend on the type of tenancy which is in place.
Assured or Short Assured Tenancies
Most private residential tenancies which commenced before 1 December 2017 are either assured or short assured tenancies. There is no legislation which specifically addresses abandonment of such tenancies. The first place to start is therefore to check the terms of the tenancy agreement. The Housing (Scotland) Act 1988 sets out the grounds on which a landlord may recover possession. Ground 13 is that the tenant has breached a term of the tenancy agreement. Generally an assured or short assured tenancy will include a term in the agreement which obliges the tenant not to leave the property unoccupied for more than a set period (usually 2 weeks) without asking the landlord first. If the tenant has breached this term then the landlord may be able to serve notice(s) to terminate the tenancy and then make an application to the tribunal for eviction once the statutory notice periods have passed. The tribunal will not make an order in the landlord’s favour on the basis of Ground 13 unless it is satisfied that it is “reasonable” to do so.
Private Residential Tenancies
A private tenancy of residential property which commenced on or after 1 December 2017 will most likely be a “SPRT” (Scottish Private Residential Tenancy) in terms of the Private Housing (Tenancies) (Scotland) Act 2016. If it is a SPRT then there is a statutory ground for eviction on the basis that the tenant has abandoned the property. In terms of Paragraph 10 of Schedule 3 of the 2016 Act, the tribunal must find that the tenant has abandoned the property if (a) the property is not being occupied as the only or principal home of the tenant or his/her subtenants; and (b) the reason the property is unoccupied is not due to the landlord’s breach of their repairing duties.
This will require to be proven by the landlord to the satisfaction of the tribunal before they will grant the order. However, there is no consideration of reasonableness in the same way as there is for assured or short assured tenancies. A landlord who wishes to raise tribunal proceedings must serve a ‘Notice to Leave’ and give the correct statutory period of notice to the tenant.
Alternative to Tribunal proceedings
In some cases a landlord may feel that making an application to the Tribunal is not worth the time and money. Formally terminating a tenancy can be a complicated task which requires notices to be served in the correct manner and imposes lengthy waiting periods before raising the application, waiting for it to be heard and waiting on the order to be granted and enforced.
In some cases it may be obvious that the tenant has permanently left the property. A landlord may be willing to take the risk that the tenant will not claim damages from them if they take the property back during the process of, or without resorting to, tribunal proceedings. Another concern would be to avoid criminal liability for unlawful eviction. In order to try and do so the best practice is to follow the steps below.
If you are satisfied that the tenant has abandoned the property after following this procedure you may decide to change the locks. Please be advised that you do so at your own risk and while the above procedure may provide a defence to a charge of unlawful eviction, the only absolute way to end the tenancy is with a tribunal order for eviction.