Short-assured tenancies and assured tenancies
A short-assured tenancy under the Housing (Scotland) Act 1988 is one where you rent from a private landlord or letting agent and:1s32 H(S)A 2001 •the tenancy started after 2 January 1989 but before 1 December 2017; and
•the initial tenancy agreement was for at least six months; and
•before the tenancy started, the landlord issued an AT5 form.2
If no AT5 form was issued, the client has an assured tenancy.
A short-assured tenancy has an end date, but a landlord has to follow the right process if they want the client to leave. Otherwise, the tenancy is automatically renewed. This is called ‘tacit relocation’.
A model short-assured tenancy agreement is at .
Assured tenancies are those which are not short-assured tenancies and were issued before 1 December 2017. They are regulated by the Housing (Scotland) Act 1988.
The procedures for eviction are very similar and the landlord must also take the client to the tribunal if they want to evict them.
The client should also have a lease agreement where the terms of the let are stated. It is essential to obtain a copy and check the agreement is valid.
Grounds for eviction
Under an assured and short-assured tenancy agreement, there are varying ways that a landlord can evict a tenant. The landlord must specify which ground for eviction they are using.
The full grounds for eviction are in Schedule 5 of the Housing (Scotland) Act 1988.3Sch 5 H(S)A 1988 Normally, repossession is on grounds 11 or 12 for rent in arrears being ’lawfully due’.4Sch 5 H(S)A 1988 (grounds 11 and 12) The tribunal will not make an order for repossession unless it thinks it is ’reasonable to do so’.5s18(4) Sch 5 H(S)A 1988 Where there has been a delay in universal credit (UC) or housing benefit (HB), or the landlord has not properly carried out the pre-action protocol, the tribunal can refuse to award repossession.6s4A(a) and (b) H(S)A 1988
Pre-action protocol
The pre-action protocol only applies to cases where the ground for repossession is rent arrears.7s18 H(S)A 1988 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 brought in pre-action requirements which all private sector landlords must now follow.8Regs 3 and 4 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 No.304, amended by s8 H(S)A 1988 and Sch 3 Private Housing (Tenancies) (Scotland) Act 2016 The requirements are that the landlord must:9The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 No.304 •provide the tenant with clear information about:
◦the terms of the tenancy agreement; and
◦the amount in arrears; and
◦the tenant’s rights in relation to proceedings for possession of a house (including the pre-action requirements); and
◦how the tenant can accesses information and advice on financial support and debt management; and
•make reasonable efforts to agree with the tenant a reasonable plan to make payments of:
•reasonably consider:
◦steps being taken by the tenant which may affect the ability of the tenant to pay arrears within a reasonable time;
◦changes to the tenant’s circumstances which are likely to impact on the extent to which the tenant complies with the terms of an agreed plan.
Notice to quit and notice of proceedings
When a landlord wants to evict a tenant, they must first serve them with a ‘notice to quit’10 and a ‘notice of proceedings’ (also known as an AT6 notice).11 The tribunal has the power to dispense with this if it deems it reasonable.12s19(1)(b) and Sch 5 H(S)A 1988 The landlord must begin proceedings within six months of serving the AT6.13s19(7) and Sch 5 H(S)A 1988
Section 11 notice
Along with the notice of proceedings, the landlord must also serve a ’section 11’ (Homelessness etc. (Scotland) Act 2003) notice to the local council where the property is situated.14s19A H(S)A 1998 This informs the local authority that the landlord is seeking repossession.15s11 Homelessness etc. (Scotland) Act 2003 The landlord must have proof of sending a section 11 notice to the local authority.