Your rights as a landlord are restricted in terms of the Housing (Scotland) Act 1988 . This requires you to obtain a court order before entering or repossessing a property, changing the locks or terminating the tenancy agreement. This legislation applies to assured and short-assured tenancies and the requirement to obtain a court order applies even if it's clear that the tenant is no longer living in the property.
To recover the property legally, the tenancy must be formally ended. As the landlord, you can raise an action to end the tenancy on the basis that the tenant has breached the agreement by failing to live in the property. Sheriff Officers will serve the relevant Notices at the tenancy address and in these circumstances, a Sheriff would be able to grant an Order for recovery of possession. Once this order has been granted, then you are entitled to enter the property and change the locks.
You need to be careful to avoid making yourself vulnerable to civil or criminal action. For example, if the tenant was to return, they could argue that they had been wrongly evicted. Section 36 of the Housing (Scotland) Act 1988 says that the landlord could be liable to pay a tenant damages if they unlawfully repossess the property. This applies even if the tenancy agreement contains a clause which specifically details the action that the landlord may take in the event of an abandonment. In addition, Section 22 of the Rent (Scotland) Act 1974 states that it is a criminal offence to unlawfully evict or harass a tenant to cause them to leave.
If a tenant has left items in the property, you must still act with caution. If you know where the former tenant is, you should try to contact them and give them a reasonable period of time to come and collect their belongings. If you don't know where the former tenant is, you can report the items to the Police who are likely to advise that you store the items for a reasonable period of time. If the value of the items is less than the storage costs, you can dispose of the items. It is advisable to record details of the items on an inventory and to photograph the items. Ideally both the inventory and the photographs should be witnessed by an independent person. If you want to sell the items to offset any rent arrears or damage, you will need to get a court order.
We strongly advise that you get independent legal advice before you take any action against a tenant or their property.
Housing and Property