Knowing your rights as a Registered Social Landlord (RSL) when dealing with an abandoned property is essential to avoid any legal headaches in the future.

Perhaps your tenant has been out of contact, falling behind on their rent, and the piles of unread letters on their doorstep suggest they have abandoned the property completely.

But before you can call the locksmith and pack up any belongings here are a few things worth bearing in mind:

What Are My Rights?

The Housing (Scotland) Act 2001 (“The 2001 Act”) allows an RSL to recover possession of an abandoned property without raising court proceedings. The abandonment procedure can only be used where the RSL has reasonable grounds to believe that:

• The property is unoccupied; and
• The tenant does not intend to occupy it

Where the property is being inhabited by sub-tenants, friends or family, it is deemed to be occupied and abandonment proceedings cannot be used.

Abandonment Notices

For an RSL to recover possession of a property via the abandonment procedure, two notices must first be served on the tenant.

Serving the First Notice

Before service of the first abandonment notice, an RSL should carry out diligent inquiries to establish the criteria and:-

• retain a record of investigations they have undertaken
• ensure the information obtained from third parties such as Police Scotland, social work departments or councils is verified as far as possible.

After these inquiries, if the RSL believes the property is unoccupied and that the tenant does not intend to occupy it, then they require to serve a notice informing the tenant they suspect they have abandoned the property. The notice must also specify that the tenant is required to inform the RSL within 4 weeks of service of the notice if they intend to occupy the property, and that the property will be recovered by service of a second notice should no contact be made in that time.

Read more: Recovering Arrears From Joint Tenants of Scottish Secure Tenancies

If contact is made by the tenant within the 4-week notice period, then it is unlikely that the property can be recovered via the abandonment procedure. Valid reasons for the tenant’s absence may include:

• The tenant is in hospital;
• The tenant’s job requires them to be away for prolonged periods;
• The tenant requires to care for someone or be cared for or
• The tenant is in prison

Please note that if you suspect a tenant’s reason to be disingenuous, you may also attempt to recover the property through eviction proceedings.

Serving the Second Notice

Where the tenant fails to engage within the 4-week period, the second notice may be served. Before serving the second notice, the 2001 Act requires an RSL to make inquiries to be satisfied that the property remains unoccupied and that the tenant does not intend to occupy it. These may include interviewing neighbours, support agencies or legal representatives, checking with the tenant’s employer to ensure they remain employed in the area, and even checking that the tenant’s child is registered at the same school. Records should be kept of these efforts. Please note that the 2001 Act requires these inquiries to be completed between service of the first and second notice and that failure to do so will allow a tenant to challenge the abandonment.

Read more: Evictions Proceedings Relying on Arrears

Once such inquiries are made, an RSL may serve a second notice advising the tenant that the tenancy will end with immediate effect. At such time, an RSL is entitled to take possession of the property without any further proceedings. We would advise that an RSL creates an inventory of all goods remaining in the property following an abandonment.

Why Should I Follow the Abandonment Procedure?

The importance of following the procedure is highlighted by a tenant’s right of appeal. A tenant has 6 months from the date in which the second abandonment notice was served to raise a summary application with the relevant Sheriff Court.

Should the Court find that an RSL failed to adhere to the abandonment procedure or that a tenant had a valid reason for failing to respond to the first notice with in the 4-week notice period then the abandonment may be successfully appealed.

A tenant will be entitled to occupy the property again following a successful appeal provided the property is vacant. Where a property has been re-let prior to the appeal, the tenant will not be entitled to move back into the home, but an RSL may be required to provide alternative accommodation.

Should you require any further information on abandonments, please contact our team.