In an earlier blog we discussed the benefits of the new abandonment ground contained within the Private Housing (Tenancies) (Scotland) Act 2016.
Ground 10 states;
"It is an eviction ground that the tenant is not occupying the let property as the tenant's home."
This ground is only applicable to private residential tenancies.
A practical difficulty now anticipated in connection with this ground relates to service difficulties in the application for eviction.
The First-tier Tribunal for Scotland (Housing and Property Chamber) arranges service of the eviction application on tenants. They instruct sheriff officers to effect service. Sheriff officers will not serve eviction applications where they are unable to verify that the tenant is occupying the property.
This is a clear problem given the very nature of the ground.
I am sure many will ask what is the problem? Surely, if the tenancy is empty you can recover possession.
However, in terms of the Act, a private residential tenancy can only be ended in one of three ways.
- By the tenant giving notice to leave and leavin
- By the landlord giving notice to leave and the tenant leaving
- By an eviction order granted by the Tribunal
While serving the notice to leave where the landlord considers the tenant to have abandoned the property should not pose problems, given the clauses contained within the tenancy agreement, the landlord is likely to encounter difficulties when proceeding with an application under this ground.
In the sheriff court there is the procedure to request service by walls of court or advertisement where the defender cannot be located. Unfortunately, there is no such provision within the Tribunal rules. Therefore, essentially the Tribunal rules do not adequately provide the remedies available to the landlord under the Private Housing (Tenancies) (Scotland) Act 2016.
Indeed, in the recent case of Scott v Bachhaznadji the tenants vacated the property without providing a forwarding address to the landlord. The Chamber President held that the application for eviction should be rejected due to the absence of an address for the tenants. This meant the application did not meet the requirements of information to be contained within an application i.e. the name and address of the tenant could not be provided. The Tribunal was therefore unable to notify the tenants of the application and details of the case management discussion.
If you are a private landlord who believes your tenant is not occupying the property please contact our let law team for advice as to your options.
