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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11971
Experience:  30 years as a practising solicitor.
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My family lives in a 2 bedroom house in Scotland. I took in

Customer Question

My family lives in a 2 bedroom house in Scotland. I took in a lodger last August, because we planned to go abroad for at least 5 months. Purpose of trip is both business and holiday, because I run a UK company whose customers are from overseas.We signed a lodger agreement which specified his accommodation is one bedroom which I would have no access to without prior consent with at least 24 hours notice. I have put a lock on the other bedroom. Lounge, bathroom, kitchen hallway are shared areas. The agreement states that the agreement may be ended by either party giving no less than 2 months written notice. There were no witnesses when it was signed.The agreement was signed on 2/8/1017 for the lodger to move in on 9/8/2017. We stayed in our house in the morning on 9/8/2017 and traveled around the UK before we went abroad on 15/08/2017.Communications with the lodger had been fine and rents had been paid until 21/12/2018. The lodger is now not responding to our emails, phone calls and has stopped paying rents.I am looking to evict him because it is so stressful for me and my family. Please could you advice the best way to proceed? Should I treat him as a excluded lodger by giving certain amount of notice or short assured tenant by going to the court for eviction order? We are okay to return to the UK now if it is possible to evict him sooner. Thank you.
Submitted: 1 month ago.
Category: Scots Law
Expert:  JGM replied 1 month ago.

Thanks for your question. I am a solicitor in Scotland. Did you set up a short assured tenancy by serving an AT5 before the contract was signed?

Customer: replied 1 month ago.
Thank you. No, I didn’t. Contract was downloaded from https://scotland.shelter.org.uk/__data/assets/file/0005/378689/Sample_Lodger_Agreement.rtfThe contract was printed onto three pages of paper, I and the lodger signed on the last page without third party witness.
Customer: replied 1 month ago.
I would like to add that duration of the contract is from 09/08/2017 to 20/07/2018 with a 2 months break out clause.
Expert:  JGM replied 1 month ago.

You can give 4 weeks notice on the basis that the tenant, who is a common law tenant, not a short assured tenant, has broken the terms of the tenancy agreement. If the tenant does not leave within that time you will have to go to court to get an order for eviction. The action has to be raised as a summary cause action in the local sheriff court and you can get the forms at www.scotcourts.gov.uk. However, as tenancy issues can be stressful and sometimes a little complex procedurally you may want to get your solicitor to deal with this for you, especially as you are currently abroad. I hope that helps. Please leave a positive rating so that I am credited for my time.

Customer: replied 1 month ago.
Will the notice still be valid if it is served by email or text?
If I start living in the house now, may I evict the tenant at the end of the notice without having to apply to court for an order, based on that I am a resident landlord? The house is my principle home. I don't have other properties other than it.
Thank you.
Expert:  JGM replied 1 month ago.

No, the notice should be sent recorded delivery or by sheriff officer. And no, whether you are in the house or not, it is a criminal offence to evict any tenant without a court order.

Customer: replied 1 month ago.
Thank you.I have got contradictory information from below regarding evictionhttps://scotland.shelter.org.uk/get_advice/advice_topics/eviction/eviction_of_common_law_tenantsAt end of the page, it states "Eviction if you live with your landlord. If you live with your landlord then they won't need to get a court order before they can evict you. However, your landlord will still need to give you proper notice that they want you to leave, as outlined above.Please could you shed some light on it? Thank you very much.
Expert:  JGM replied 1 month ago.

Yes, I’ve been asked about that page before. The last bit contradicts the main body of the content. The last bit is wrong. As earlier advised to evict without a court order is a criminal offfence under housing legislation and in any event couldn’t be done as if you tried to throw someone or their possessions out physically that would be assault and possibly criminal damage.

Customer: replied 1 month ago.
Thank you.At the end of the notice, can I change the locks to prevent the tenant from entering my house, rather than seek a court order? I am not going to damage his belongs and will return their possessions peacefully. Thank you.
Expert:  JGM replied 1 month ago.

No, you can’t. See online Section 38 of the Housing (Scotland) Act 1988.

Customer: replied 1 month ago.
Thank you.Could you please shed some light on this? Thank you very much.https://www.gov.uk/rent-room-in-your-home/your-lodgers-tenancy-type"Your lodger is an excluded occupier
Your lodger is likely to be an excluded occupier if:
they live in your home
you or a member of your family share a kitchen, bathroom or living room with themIn this case, you only have to give them reasonable notice to end the letting - and you won’t have to go to court to evict them."
Customer: replied 1 month ago.
Just also wanted to add thishttps://www.gov.uk/rent-room-in-your-home/ending-a-letting"5. Ending a lettingHow to end an excluded tenancy or licence
If your lodger is an excluded occupier, you only need to give them ‘reasonable notice’ to quit.Usually this means the length of the rental payment period – so if your lodger pays rent weekly, you need to give 1 week’s notice. The notice doesn’t have to be in writing.You can then change the locks on your lodger’s rooms, even if they’ve left their belongings there. You must give their belongings back to them."
Customer: replied 1 month ago.
28 days or 40 days notice should I give? The original tenancy lasts for around 11 months. Thanks.
Customer: replied 1 month ago.
Could you please reply to my questions or pass it to another Scottish law expert. Thank you
Expert:  JGM replied 1 month ago.

Please don’t confuse your Google search with my law degree. It is less than helpful. I suspect you are reading English law materials but whatever it is doesn’t relate to the law in Scotland so don’t waste my time or yours with this.

Customer: replied 1 month ago.
Is 28 days notice okay rather than 40 days? Thank you.
Customer: replied 1 month ago.
The rent should be paid on the 9th of each month. I am wondering if the notice must end on the 8th? Thank you.
Customer: replied 27 days ago.
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Customer: replied 27 days ago.
28 days or 40 days notice should I give? The original tenancy lasts for around 11 months. Thanks.