From Lawpack's Residential Lettings Kit .
How can you terminate a tenancy agreement in Scotland? What legal forms do you need? And under Scottish law what is the process you must follow? Stop worrying: here's your guide to terminating a tenancy agreement in Scotland.
As a landlord, when you're asking your tenant to move out it's very important that your notice to terminAT6 Noticeate a tenancy agreement is in the correct form, as otherwise you won't be able to use it in court proceedings for possession. A letter simply asking the tenant to leave by a certain date will not be sufficient.
The notices to terminate a tenancy agreement should be completed as follows:
Section 33 Notice and Notice to Quit
If you haven't served any termination notices at the end of the fixed term, the tenancy agreement continues automatically for the same term as the original term of the tenancy (e.g. if the tenancy agreement was for eight months, it continues for a further eight months by what is called 'tacit relocation', and if you want to repossess your property, you will have to serve the correct notices at least two months before the end of that further eight-month period).
It's, therefore, important to make sure that the landlord and tenancy notices are served before the expiry of the fixed term of your tenancy agreement or you run the risk of the tenancy being continued by tacit relocation.
If you're simply bringing the tenancy agreement to an end because the fixed term is up, it should be sufficient to serve the Section 33 Notice at the same time as the Notice to Quit, but if there are other reasons for which you wish to terminate the lease (e.g. rent arrears or you think you will have to raise proceedings), you should also serve the tenant with a Section 19 Notice (AT6 Notice).
If the Notices are signed by an agent, their full name and address should be included.
Section 19 Notice AT6 and Notice to Quit, Scotland
The Section 19 Notice (or AT6 Notice) can be used if the tenant falls into rent arrears. If the tenant is in rent arrears of at least three months at the date of service of the Section 19 Notice and on the date of a subsequent court hearing, you're entitled to an order for possession as of right by referring to ground 8 of Schedule 5 of the Housing (Scotland) Act 1988.
The AT6 Notice can also be used when there are rent arrears of less than three months, except that in the AT6 Notice you refer to ground 12 of the Housing (Scotland) Act, rather than ground 8. The difference with ground 12 is that it's a discretionary ground and there's no guarantee that the Sheriff will grant an order for possession.
But it still may be worthwhile serving the notice as it may encourage the tenant to pay the rent arrears. Alternatively, if the arrears have risen by the time you come to raise court action, you're much more likely to be granted an order for possession. You must still complete Part 3 of the AT6 Notice, where it asks for details, and a rental statement showing how the rent arrears are calculated should be attached.
The procedure for using the AT6 Notice on the basis of either ground 8 or 12 is exactly the same. The notice period required in the AT6 Notice is two weeks; however, the Notice to Quit must also be served and this has to give at least 40 days' notice.
These notices should be served by recorded delivery and the 40-day notice period runs from the date the notices are received; so if you're serving the notice by recorded delivery, the notice period should be at least 41 days.
If recorded delivery is unsuccessful or if you wish to guarantee that the notices are served on a certain day, the alternative is for the notices to be served by a sheriff officer, but this is more costly.
If you're unsure which ground to rely on or when to serve the AT6 Notice, you should seek legal advice .
Find out more on how to create a tenancy agreement and terminate a tenancy here.
Find out how you can get FREE tenant eviction advice here.
Law stated as at 1 August, 2008.
