It is a well known principle that any construct must be built on solid foundations in order to stand the test of time. Well, the same can be said for raising an action for recovery of possession of a Scottish Secure Tenancy. In order for proceedings to be initiated the first step is to serve a Notice of Proceedings.

This prerequisite document essentially supports the action through legal proceedings in the courtroom and certainly is the initial bedrock of a pursuer?s position before a Statement of Claim is produced. The Notice of Proceedings allows landlords to initiate proceedings against a tenant and providing (in certain cases) the opportunity for the tenant to rectify matters.

One pertinent issue which has recently been contested in the Courts is the requirement to serve a Notice of Proceedings on all qualifying occupiers alongside the tenant(s) within the tenancy. In order to assist a Notice of Proceedings being drafted on strong foundations, caution and care are required.

Firstly, what is a Qualifying Occupier? S14 (6) of the Housing (Scotland) Act provides the definition:

'Qualifying occupier' means a person who occupies the house as that person's only or principal home and who is:

(a) a member of the tenant's family aged at least 16 years,

(b) a person to whom the tenant has, with the landlord's consent under section 32 (1), assigned, sublet or otherwise given up possession of the house or any part of it, or

(c) a person whom the tenant has, with such consent, taken in as a lodger.

The legislation under S14 (3) also imposes a statutory duty upon the landlords to make necessary inquiries to establish (so far as is reasonably practicable) whether there are any qualifying occupiers of the house and, if so, their identities. Therefore, it is of the utmost importance for landlords to ascertain details of all persons residing in the tenancy (including their dates of birth) to determine whether there is a statutory obligation upon the landlord to serve a Notice of Proceedings in respect of each person resident at the tenancy. In recent years, there have been notable instances of case law relating to this statutory requirement within the courts.

Most recently, the case of Elderpark Housing Association -v- M involved an appeal of an eviction order. The Tenant argued that the landlord had failed to serve a Notice of Proceedings on the tenant's 16 year old daughter thereby rendering the action for eviction incompetent. The Tenant placed reliance on the landlords failure to comply with S14 (2)a of the Housing (Scotland) Act 2001 which provides:

Such proceedings may not be raised unless -

(a) the landlord has served on the tenant and any qualifying occupier a notice complying with subsection (4)

Ultimately, the case settled so there was no ruling on the issues raised. Nonetheless, the case is an important reminder to social landlords of the importance of making inquiries to establish who is residing in the property, recording inquires made and serving notices on all qualifying occupiers.

If you require any further advice in relation to qualifying occupiers or private rented tenancies please contact our social housing team.