Online library

Ending a tenancy can be quite complex and it is essential that the correct procedure is followed. Crucially the termination of the tenancy will be made so much easier if the lease was correctly drafted in the first place and the AT5 was issued prior to the lease being signed.

Ending a tenancy can be quite complex and it is essential that the correct procedure is followed. Crucially the termination of the tenancy will be made so much easier if the lease was correctly drafted in the first place and the AT5 was issued prior to the lease being signed.

A tenancy does not automatically end just because it reaches the end date of the tenancy agreement, also known as the ‘ish date‘. If you, or your tenant, do not end the tenancy properly it will automatically continue either for the same duration or such other duration as the lease provides for subject to a maximum period of 1 year. This automatic renewal is known as ‘tacit relocation’.

A tenancy can be ended in a number of ways:

A tenancy can be ended in a number of ways:

• You can serve your tenant with a Notice to Quit to end the tenancy at the end of the tenancy agreement.
• Your tenant can give you a written notice to end the tenancy at the end of the tenancy agreement.
• You and your tenant can both agree to end the tenancy at any time. Any such agreement should be documented in writing and signed by both parties.
• If your tenancy agreement narrates, in full, Grounds 2, 8, 11 to 14 and 16 of the recovery grounds, stating that you will seek to end the tenancy and recover possession if conditions of the tenancy are broken, you may be able to give your tenant Form AT6 before the end date in the agreement and then raise a Court action.

This depends on:

• Why and when you want to end the tenancy.
• The type of tenancy your tenant has.
• Whether you want the tenant to leave.
• Whether you want to offer the tenant a new tenancy agreement.

Normally to end a tenancy you must always serve a Notice to Quit. This may not be required if the lease makes provision for repossession on the following grounds; 2, 8, 11 -14 and 16. In such circumstances an AT6 form must be served (see below) using the prescribed notice period which varies depending on the Grounds being cited.

This depends on:

• Why and when you want to end the tenancy.
• The type of tenancy your tenant has.
• Whether you want the tenant to leave.
• Whether you want to offer the tenant a new tenancy agreement.

Normally to end a tenancy you must always serve a Notice to Quit. This may not be required if the lease makes provision for repossession on the following grounds; 2, 8, 11 -14 and 16. In such circumstances an AT6 form must be served (see below) using the prescribed notice period which varies depending on the Grounds being cited.

You may run into problems if you don’t use all the required forms and notices to set up and end your tenancy – particularly if the tenant does not leave when you expect them to.

It is important to consider the options available to you when deciding that you wish to terminate a tenancy and remove a tenant. If the tenancy is an Assured tenancy, as opposed to a Short Assured tenancy, then you have to proceed on the basis of one of the seventeen ‘Grounds’ listed in Schedule 5 to the Housing (Scotland) Act 1988. If, however, the tenancy is a Short Assured tenancy, then in addition you can utilise the two month notice procedure set out in Section 33 of the said Act.

It is important to consider the options available to you when deciding that you wish to terminate a tenancy and remove a tenant. If the tenancy is an Assured tenancy, as opposed to a Short Assured tenancy, then you have to proceed on the basis of one of the seventeen ‘Grounds’ listed in Schedule 5 to the Housing (Scotland) Act 1988. If, however, the tenancy is a Short Assured tenancy, then in addition you can utilise the two month notice procedure set out in Section 33 of the said Act. This latter procedure, if properly followed, means the Court has to grant an order for eviction if it is complied with and it is therefore normally the preferable method. This means you do not have to give a specific reason for wanting to regain possession.

In terms of Section 33 the Court must make an order for repossession if it is satisfied that (1) the short assured tenancy has reached its ish date without tacit relocation operating, (2) that no further contractual tenancy (short assured or not) is in existence and (3) that the landlord has given the tenant notice that “he requires possession of the house” (Second 33(1)(d)). The period of notice is two months unless the terms of the tenancy provide for a longer period.

In terms of Section 33 the Court must make an order for repossession if it is satisfied that (1) the short assured tenancy has reached its ish date without tacit relocation operating, (2) that no further contractual tenancy (short assured or not) is in existence and (3) that the landlord has given the tenant notice that “he requires possession of the house” (Second 33(1)(d)). The period of notice is two months unless the terms of the tenancy provide for a longer period. Section 33 operates without prejudice to any right of the landlord to recover possession in accordance with the Grounds listed in Schedule 5.

If utilising Section 33 you must serve (1) a formal Notice to Quit, (2) Form AT6 stipulating that you are relying on Section 33 and giving notice that the landlord “requires possession” and (3) a “Section 33 Notice” which also gives the tenant notice that the landlord “requires possession”. There are conflicting views on whether Form AT6 is required but it is recommended you use it in order to avoid any potential problems.

It is important to note that the date in the Notice to Quit may not coincide with the dates in the other 2 Notices.

Notice to Quit

A Notice to Quit is the Notice which brings the tenancy agreement to an end at its ish date. It is vital that the Notice to Quit specifies the date the tenancy is to terminate (the ish date). For example, if you have a short assured tenancy from 1 January to 1 July and it continues thereafter by tacit relocation, the ish date is either 1 July or 1 January. This is the date that must be specified in the Notice to Quit. In addition, the following points apply:-

• The Notice to Quit must contain the statutory prescribed information otherwise it is invalid.
• The Notice must be served by recorded delivery post or Sheriff Officers.
• Serving a valid Notice to Quit does not in itself mean that a tenant has to leave your property. It only brings the contractual tenancy to an end and creates a statutory Short Assured tenancy thereafter. As stated above, in terms of Section 33, the Court has to be satisfied that the tenancy has reached its ish date and no further contractual tenancy is in existence and a valid Notice to Quit achieves this purpose. An invalid Notice to Quit does not!
• Serving a Notice to Quit alone does NOT mean a tenant has to leave your property.

What to include

If you serve a Notice to Quit to your tenant it must include the following information:

• The tenant’s full name
• The full address of the property
• The date the tenancy ends (ie the ish date) – this is the date the tenant is called to remove upon
• Your signature
• The date you signed the notice

A Notice to Quit must also include the following three statements:

• Even after the Notice to Quit has run out, before the tenant can lawfully be 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 house 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 Advisory Centre.

Notice period

This depends on the type of tenancy agreement your tenant has and the length of the agreement.

To end an assured tenancy at its end or ish date you must give the following minimum amounts of notice;

• 28 clear days (excluding the date of service and the ish date) if the tenancy agreement is up to 1 month
• 40 clear days (excluding the date of service and the ish date) if the tenancy agreement is for more than 3 months

If the tenancy agreement provides for a longer period this must be given. It is advisable to serve the other forms (i.e. Section 33 Notice and AT6 form) at the same time and you should be aware that the notice period for such notices can be up to two months.

You can increase the minimum amount of notice which must be given by you or by your tenant if you write this in the tenancy agreement.

You can agree to the tenant giving you a shorter amount of notice.

You cannot give your tenant less notice than the amounts listed above.

The period of notice in the Notice to Quit must relate to the end or ish date of the tenancy agreement.

You should take into account the length of time it will take for the notice to be delivered. The date of the Notice and the date specified in it are normally left out of account in calculating the notice period given.

A Notice to Quit will be invalid if:

• You don’t include all the information listed above
• You don’t give the correct amount of notice
• You don’t serve the notice by recorded delivery or by Sheriff Officers

If a Notice to Quit is invalid, you will need to serve another valid Notice to Quit. This must include the required information and give the correct amount of notice.

If you don’t have enough time to serve a valid Notice to Quit, the tenancy agreement will automatically renew itself with the same terms and conditions as before – unless both landlord and tenant agree different terms or conditions – because of automatic renewal (tacit relocation). You will be unable to end the tenancy until the next end date. Depending on what your tenancy agreement says, this could be another month, six months or even a year.

Section 33 notice

Section 33 of the Housing (Scotland) Act 1988 sets out a specific procedure which will enable recovery of possession of a property which has been let under a Short Assured Tenancy. A special notice is required in terms of this section telling your tenant that you wish to recover possession. The minimum period of notice you must give on a Section 33 notice is two months. You must state you require possession.

Notice of Intention to Raise Proceedings (AT6)

A Notice of Intention to Raise Proceedings is a legal document and is also known as an AT6. You must serve your tenant with an AT6 before you can take legal action to get your property back if your tenant doesn’t leave at the end of the Notice to Quit. A copy of an AT6 can be downloaded from the NLA website. When utilising Section 33 you must give 2 months notice and state you require possession in terms of Section 33.

Essential information on an AT6

You must include:

• A statement that you require possession if using Section 33 and if not using Section 33 the full ground(s) listed in the Housing (Scotland) Act 1988 that you want to use to get your property back. You can list as many grounds as may apply.
• The reasons why you are using these grounds.

If you are not relying on Section 33 or the tenancy is an Assured tenancy as opposed to a Short Assured tenancy then you have to utilise one of the 17 grounds in Schedule 5 to the Act. The grounds 1 to 8 are mandatory and 9 to 17 discretionary so where possible you should try and rely on grounds 1 to 8 if they can be established.

If you are not relying on Section 33 or the tenancy is an Assured tenancy as opposed to a Short Assured tenancy then you have to utilise one of the 17 grounds in Schedule 5 to the Act. The grounds 1 to 8 are mandatory and 9 to 17 discretionary so where possible you should try and rely on grounds 1 to 8 if they can be established. If utilising this procedure and not able to use the accelerated procedure provided for in Section 18(6) of the Act, see below, it is necessary to serve a Notice to Quit as above, again, specifying that the tenancy will end on the ish date. It is also necessary to serve Form AT6 narrating in full the grounds being relied upon and also narrating the reasons those grounds are being relied upon. It is important to note that in terms of the Act grounds 1, 2, 5, 6, 7, 9 and 17 will require a notice period of two months whereas the remaining grounds require a notice period of two weeks. These notice periods do not have to coincide with the date specified in the Notice to Quit. However, as a court action cannot be raised until the expiry of the Notice to Quit, you may wish to use the same date in the Notice to Quit should it be later than the required two weeks or two months notice period.

Depending on the grounds you wish to use and whether your lease provides for termination on those grounds the notice period will vary. You must give your tenant notice of your intention to raise court proceedings.

The notice periods are laid down by statute.

Depending on the grounds you wish to use and whether your lease provides for termination on those grounds the notice period will vary. You must give your tenant notice of your intention to raise court proceedings.

The notice periods are laid down by statute.

• If you want to use grounds 1, 2, 5, 6, 7, 9 or 17, you must give two months notice. If you are using only the other grounds, you can serve an AT6 form giving two weeks notice.
• If you are seeking to end a short assured tenancy at its end date on the basis of Section 33, you must give at least two months notice on an AT6 form. The date on the AT6 does not need to coincide with the date on the Notice to Quit.
• The landlord has six months from the date on the AT6 form during which court proceedings for eviction can be started.

All legal documents to end a tenancy must be served in one of two ways:

• By recorded delivery or registered post
• By Sheriff Officer (whose contact details can be found in local business directories

Each joint tenant must be served with their own Notice to Quit and if appropriate with AT6 form and Section 33 Notice

All legal documents to end a tenancy must be served in one of two ways:

• By recorded delivery or registered post
• By Sheriff Officer (whose contact details can be found in local business directories

Each joint tenant must be served with their own Notice to Quit and if appropriate with AT6 form and Section 33 Notice

It can be best if possible to serve all the notices at the same time, and use the same dates on each, taking into account the required minimum periods of notice but always remember that the Notice to Quit must end the tenancy on the ish date. This will avoid any confusion about the date that you are actually asking the tenant to leave.

Many tenants, particularly those who are new to renting, are unlikely to know the formalities needed to end tenancy agreements and may be worried when they receive all these notices. You can help to ease any worry by letting them know in advance that you are going to send them, and re-assure them that the forms are only a legal formality to end the tenancy.

Section 11 of the Homelessness (Scotland) Act 2001 requires landlords to notify the local authority when they raise eviction proceedings against a tenant. Notification is not needed at the stage where notices to end a tenancy are being served.

Notifications should be sent to the Housing Department of your local authority.

Section 11 of the Homelessness (Scotland) Act 2001 requires landlords to notify the local authority when they raise eviction proceedings against a tenant. Notification is not needed at the stage where notices to end a tenancy are being served.

Notifications should be sent to the Housing Department of your local authority.

The Tenant wants to end the tenancy.

The tenant can only end the tenancy at the end date, or ‘ish date‘, of the tenancy agreement, or an anniversary of this, unless your lease provides or you agree otherwise.

They must give you the amount of notice stated in the tenancy agreement.

The Tenant wants to end the tenancy.

The tenant can only end the tenancy at the end date, or ‘ish date‘, of the tenancy agreement, or an anniversary of this, unless your lease provides or you agree otherwise.

They must give you the amount of notice stated in the tenancy agreement.

• If your tenant gives the correct amount of notice you must agree to end the tenancy.
• If your tenant gives less notice than agreed in the tenancy agreement, a landlord can refuse to end the tenancy. The tenant will still be responsible for the obligations in the agreement, including paying rent until the next date the tenancy can be brought to an end. However, it may be simpler to make another agreement with the tenant about when the tenancy will end.

You should put any agreement in writing and ask the tenant to sign it. This will help prevent any problems in future.

The tenant can simply write you a letter, as long as they give you the proper amount of notice.