We are regularly asked for advice by landlords in Scotland on how to repossess a property that a tenant has abandoned. However, recently we were presented with a situation that was slightly more problematic where the tenant had abandoned the property and then sublet without consent!

There is no legal route to repossess a property where a tenant has abandoned, other than by seeking a court order. However, landlords generally wish to repossess sooner rather than later and may want to carry out an assessment as to the level of risk involved in repossessing without court order. This will involve:

• Speaking to neighbours, ascertaining when the tenant was last seen
• Assessing whether or not there are belongings in the property (but this can be tricky given that the landlord has no right to take access!)
• Checking if rent is being paid, etc.

Some landlords will be happy to take the risk of repossessing without court order, where they are satisfied that the tenant has gone and is unlikely to come back. However, there is a risk involved with this as a tenant can claim against the landlord for unlawful eviction, which is an offence under the Rent (Scotland) Act 1984. This carries both civil and criminal penalties. The safest way to repossess is by serving the usual notice and raising a court action for eviction. This will prolong matters, but will ensure lawful repossession of the property.

However, it may be clear that although the tenant is no longer living at the property, they have sublet without consent to do so. Most tenancy agreements prohibit this. It would be highly risky under those circumstances for the landlord to just go ahead and change the locks. The property continues to be occupied (albeit not by the tenant!) and our advice would always be in these circumstances to seek a court order to repossess the property lawfully.

You could still be held to have carried out an unlawful eviction in terms of the 1984 Act if someone is living there. The offence of unlawful eviction is in relation to a 'residential occupier', and the definition of 'residential occupier' means a person occupying the premises, whether under a lease with the landlord or not.

Please feel free to contact a member of our Team if you want to discuss any of this further.