Ending a Tenancy
The procedure for ending a tenancy can be complicated. The following information gives you an overview of the process but we strongly recommend that you get independent legal advice.
The correct procedure for ending a tenancy depends on a number of factors. The procedures you must follow will be determined by both the type of tenancy that your tenant has and the reasons why you want to end the tenancy. If you are not sure, then you should get independent legal advice from either a solicitor or an advice centre, such as Citizens Advice. You may want your tenant to leave or you may simply want to bring the current tenancy to an end so that you can offer the tenant a new tenancy agreement.
A tenancy does not end just because it reaches the end date of the tenancy agreement. This is also known as the 'ish date'. If you or your tenants do not end the tenancy properly, it will automatically continue with the same conditions. This automatic renewal is known as 'tacit relocation'.
A tenancy can be ended by:
- serving your tenant a Notice to Quit, Notice of Intention to Raise Proceedings (AT6) and a Section 33 Notice to end the tenancy at the end of the tenancy agreement;
- your tenant giving you written notice to end the tenancy at the end of the tenancy agreement;
- you and your tenant both agreeing to end the tenancy at any time; and
- your tenant breaking a condition of the lease and you 'irritate' the lease by looking to end the tenancy and recover possession.
If the tenancy is an assured tenancy, the tenancy can only be brought to an end through mutual agreement or if the tenant breaches one of the terms of the tenancy.
If the tenancy is a short assured tenancy, the tenancy can be brought to an end through mutual agreement, following a breach of the tenancy or at any of the 'ish' dates. These are the dates when the contractual period of the tenancy ends. A tenancy can only be 'short assured' if it is for an initial minimum period of 6 months and if an AT5 notice was served prior to the creation of the tenancy. This notice informs the prospective tenant that the tenancy is being offered on a Short-Assured basis.
In all cases, you must serve a Notice to Quit to bring a tenancy to an end. If you want the tenant to leave, you must also serve them with an AT6 Notice of Proceedings. If the tenancy is a short-assured tenancy and you want the tenant to leave simply because the tenancy has reached the end of the contractual period, you must also serve a Section 33 Notice. If you do not use all of the required notices, you may have difficulty recovering possession of your property if the tenant refuses to leave.
You cannot evict any type of tenant in Scotland without a court order. If you try to persuade or force your tenants to leave without following the correct legal process then you could be carrying out an illegal eviction. This is a criminal offence in Scotland (you can find more information on evictions).
A Notice to Quit is the notice that brings the tenancy to an end. This notice must have been served before you can begin court proceedings to remove the tenant. Serving a Notice to Quit however, is not sufficient in itself to require the tenant to leave the property.
You can view a sample Notice to Quit (PDF) (1 page).
There is no legally prescribed format for this notice but there are certain things that it must contain in order for it to be valid;
- The tenant's full name;
- The full address of the property;
- The date you want the tenancy to end;
- The landlord's signature; and
- The date that the notice was signed.
In addition, the Notice to Quit must also contain the following three statements in order for it to be valid:
- Even after the Notice to Quit has run out, before the tenant can be lawfully evicted, the landlord must get an order for possession from the court.'
- 'If a landlord issues a Notice to Quit but does not seek to gain possession of the property in question, the contractual assured tenancy which has been terminated will be replaced by a Statutory Assured Tenancy. In such circumstances, the landlord may propose new terms for the tenancy and may seek an adjustment in rent at annual intervals thereafter.'
- 'If a tenant does not know what kind of tenancy he/she has, or is otherwise unsure of their rights, they can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Legislation. A tenant can also seek help from a Citizens Advice Bureau or Housing Advice centre.'
The minimum length of notice required on the notice to quit will depend on the length of the tenancy:
- If the tenancy is for a week, fortnight or a month then at least 4 weeks’ notice is required;
- If the tenancy is for 3 months then at least 31 days’ notice is required; or
- If the tenancy is for 4 months or more then at least 40 days’ notice is required.
These notice periods are minimums - there are no maximum periods. Any shorter period written into the tenancy agreement is not valid.
It is recommended that in most cases you should give two months notice as the other forms you will have to serve (AT6 and/or Section 33 Notice) will need this longer period. You should avoid serving notices with different expiry dates as this is likely to confuse your tenant. In most cases, the expiry date of the notice must relate to an end or 'ish' date of the tenancy.
In order for a Notice to Quit to be valid, it must:
- contain all of the information listed above,
- give the correct amount of notice; and
- the Notice to Quit must be served correctly either by recorded delivery or by Sheriff Officers.
If you serve a notice that is invalid, you will need to serve another notice which contains all of the required information and gives the correct amount of notice. If you have to re-serve the notice, you may find that you cannot comply with the minimum notice period and the requirement for the notice period to expire on an end or 'ish' date. You may be unable to end the tenancy until the next end date which could be another month, another 6 months or even another year depending on what your tenancy says.
Since 1 April 2009, local authorities in Scotland must be notified of any households facing the threat of homelessness through eviction or repossession.
Section 11 of the Homelessness etc (Scotland) Act 2003 requires landlords and creditors to inform the local authority when they take action to recover property. The aim is to prevent homelessness by allowing a council to contact affected households with the offer of appropriate support, including money advice. Failure to comply could be taken into account by local authorities when considering an application for landlord registration.
The reasons for eviction by private landlords can include debt and anti-social behaviour. Landlords will be expected to try and resolve issues debt and of anti-social behaviour prior to taking action to evict tenants.
Housing and Property