5 What is security of tenure?
Security of tenure means that a landlord must obtain an order from the court before he can repossess the property and the tenant can be made to leave (see Question 11). This' applies even if the tenancy has been terminated by the serving of a valid notice to quit. The circumstances in which the court can grant such an order are laid down.
6 Do all regulated tenants have security of tenure?
Yes. If, however, the tenancy Is a "short tenancy", security is normally limited to the period specified in the tenancy agreement (see Question 4).
7 Does it make any difference whether the dwelling is furnished or unfurnished?
No. If a furnishe d tenancy satisfies the requirements of a regulated tenancy the tenant will have full security of tenure.
8 If the landlord serves a notice to quit, does the tenant have to leave?
No. If the tenant does not leave voluntarily, he cannot be forced to do so until the landlord obtains a court order.
9 Must the notice to quit be given in any particular form?
A notice to quit must be in writing. If it is to be valid, it must also give the tenant the information set out in (a) to (e) below (although it is not a requirement that the exact wording set out below is used). If the notice does not contain this information it will be invalid, and the tenancy will not be terminated until a valid notice to quit is issued.
The tenant must be told that:
(a) even after the notice to quit takes effect the landlord must get an order for possession from the court before the tenant can lawfully be evicted;
(b) if the tenancy is a protected tenancy (other than a short tenancy) the court can normally grant such an order only on certain grounds;
(c) if the tenancy is a short tenancy (see Question 4) and the landlord has served a valid notice of his intention to apply for an order for possession the court must grant the order;
(d) if the tenancy is not a protected tenancy (for example, because there is a resident landlord), and it has commenced before 1 December 1980, the tenant may be able to ask the Rent Assessment Committee to postpone the date when notice to quit runs out for up to 6 months, as long as he does so before the notice runs out;
(e) if the tenant does not know whether his tenancy is a protected tenancy or is otherwise unsure of his rights, he can obtain advice from a solicitor. Help with all or part of the costs of legal advice and assistance may be available. He can also seek information from a Rent Officer, a Rent Assessment Committee Office, a Citizens' Advice Bureau or a Housing Aid Centre.
10 What period of notice must a notice to quit give?
If the house is let by the week, fortnight or month, a minimum of 4weeks'notice must be given. If the house is let by the quarter, a minimum of 31 days is required; and if by the year at least 40 days' notice must be given. Longer notice may be required if the lease so provides.
11 How can a regulated tenant be made to leave?
The landlord must get a court order for possession before the tenant can be made to leave. This applies even if the tenancy agreement between the landlord and tenant has come to an end.
It is a criminal offence for anyone to turn a tenant out of his home without a court order or try to make him leave by intimidation, violence, withholding services such as gas or electricity 6r any other sort of interference.
As a result of changes in the law made in 1989, a landlord cannot claim that he did not intend his actions to harass his tenant or force him to leave. It will still be an offence if he should have known that his actions would be likely to interfere with the tenant's lawful enjoyment of his home. Threats of physical violence should be reported to the police.
A landlord found guilty of unlawful eviction may be liable to pay damages to the evicted tenant, the level of damages being related to the financial benefit to the landlord of having a house with vacant possession rather than subject to the previous tenancy.
12 When can the landlord apply to the court for an order for possession?
If the tenancy is a contractual tenancy, the landlord must first serve a notice to quit to bring the contractual tenancy to an end. If the tenancy is a- statutory tenancy
- that is after a notice to quit has taken effect z- he can apply at any time.
13 How can the landlord obtain an order for possession?
He must establish that one of the grounds for possession that are set out in the Rent Act applies to his situation.
14 What are the grounds on which possession can be obtained?
Most of the grounds for possession are known as "cases". There are 21 in all and they are of two basic kinds. Cases 1 to 10 are known as "discretionary cases". This means that if the case applies the court does not have to grant an order but may do so if it thinks it reasonable. The remaining Cases 11 to 21 are known as "mandatory cases". In these cases the court must grant an order if it is satisfied that the case applies. There are two other grounds for possession which are not "cases" as such. First, possession can be granted if the court thinks it reasonable and suitable alternative accommodation is or will be made available for the tenant. (Alternative accommodation will be regarded as suitable if the local authority certify that they will re-house the tenant; otherwise the accommodation must give the tenant equal or equivalent security of tenure and meet certain conditions about size, rent and character.) The second ground for possession is where the house is overcrowded in terms of the Housing (Scotland) Act 1987.
15 What are the discretionary cases under which
possession can be obtained?
These are the grounds listed as cases in Part 1 of Schedule 2 to the Rent (Scotland) Act 1984. The court may grant a possession order if any of these grounds apply. They are:
Case 1 The tenant has not paid the rent, or has broken some other term of the tenancy.
Case 2 The tenant or anyone living with him has caused a nuisance or annoyance to neighbours or has been convicted of immoral or illegal use of the premises.
Case 3 The tenant has damaged the property or* allowed it to become damaged or someone living with him has done so and the tenant has not taken steps to have him removed.
Case 4 The tenant has damaged the furniture or allowed it to become damaged or someone living with him has done so and the tenant has not taken steps to have him removed.
Case5 The landlord has arranged to sell or let the property or has taken other steps because the tenant. gave notice that he was giving up the tenancy.
Case 6 The tenant has after a certain date assigned or sub-let the whole of the property without the landlord's consent.
Case 7 The tenant was an employee of the landlord and the landlord requires the property for a new employee.
The court will be satisfied that this case Is met if the Secretary of State certifies that the person for whose occupation the dwelling-house is required by the landlord is, or is to be, employed on work necessary for the proper working of an agricultural holding or as an estate workman on the maintenance and repair of the buildings, plant or equipment of agricultural holdings comprised in the estate.
Case 8 The landlord needs the property for himself or certain members of his family to live in. But this does not normally apply if the tenant was a sitting tenant when the landlord bought the property. The court will not make an order under this case if greater hardship would be caused by granting the order than by refusing to grant it.
Case 9 The tenant has charged a sub-tenant more than the Rent Act permits.
Case 10 The house is so overcrowded as to be dangerous or injurious to the health of the occupants and the tenant has not taken reasonable steps to remove any lodger or sub-tenant to improve the situation.
16 What are the mandatory cases under which possession can he obtained?
These are the grounds listed as cases Part 11 of Schedule 2 to the Rent (Scotland) Act 1984. If one of these cases is established, the court must grant an order for possession.
The mandatory cases are as follows:
Case 11 The house was let by an owner occupier who gave notice that possession might at some time be recovered under this case so that the landlord, a member of his family who was residing with him or someone Inheriting the house can live there again. Repossession will also be granted if the house is unsuitable and the landlord wants to dispose of it or if it is required for disposal by a creditor of the landlord.
Case 12 The landlord let accommodation which he acquired for occupation on his retirement.
Case 13 The accommodation was let for a specified period not exceeding 8 months, having been let for a holiday during the previous 12 months.
Case 14 'The accommodation was let for a specified period not exceeding 12 months, having been let by an educational institution specified by the Secretary of State to a student during the previous 12 months.
Case 15 The property was let on a short tenancy, which has terminated (see Question 4).
Case 16 The accommodation was intended, and is now required, for. a Minister or full-time lay missionary.
Case 17 The accommodation was occupied by, and is now required again for, a farm worker.
Case 18 Following the amalgamation of agricultural holdings, accommodation previously occupied by a farm manager has been let temporarily to an ordinary tenant.
Case 19 The accommodation was previously occupied by a farm manager or his widow and has been let temporarily to an ordinary tenant.
Case 20 The house has been built for persons with special needs, it is not occupied by such a person, and it is required by someone who has such special needs.
Case 21 The landlord was a member of the regular armed forces at the time the letting was made and intended to live in the house at some future date.
In Cases 11, 12, 15 and 21 the court may grant the landlord possession even if he has not fulfilled certain of the conditions, provided it thinks it just and equitable to do so. In the other mandatory cases the courts cannot grant possession unless all the conditions have been met.
17 Can a regulated tenant sub-let part of his accommodation?
Yes, unless his tenancy agreement forbids this. If he sub-lets on a protected tenancy he must notify the landlord in writing within 14 days and give details of the rent charged. A tenant who fails to do so without reasonable excuse or who gives false particulars Is liable to a fine.
If the tenant charges a sub-tenant more than the lawful rent, this will be a ground for repossession by the landlord (see Question 15, Case 9).