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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12195
Experience:  30 years as a practising solicitor.
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I rent out a flat to a tenant and the six month contract is

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I rent out a flat to a tenant and the six month contract is due to end mid May. The tenancy agreement rolls on three months if I do not give a notice to quit, which I didn't realise. My tenant hasn't paid the last two months rent and using me as a pawn to get social housing and admitted he could pay but that would negate his chance of extra points. My solicitor tells me that even with three months debt(if he doesn't pay May 15th) that he will still be given 40 days notice. I understood that in Scotland if there was unpaid rent for 3 months it was two weeks notice and this was my tenants understanding too. My solicitor also tells me it has to go to a county court judgement too and he will need to be issued with that by recorded delivery.
Do you have any advice for the best way to deal with this please? I now plan to sell when the flat is vacant.
Customer: replied 1 year ago.
This is the advice given me by Anderson and Goodlad and that 40!days notice has to be given with 3 months non payment of rent........
Unfortunately, it is now too late to issue a Notice to Quit in line with the end date of the tenancy. If you wished to have the tenant evicted as at the end date of the tenancy he would have needed to be given a Section 33 notice giving two month’s notice and also a Notice to Quit giving at least 40 days.
Therefore, since no Notice to Quit has been issued, the tenancy will roll on for a further three months and the eviction procedure required will be that to end an ongoing tenancy. This process is as follows:-
1. Issue Notice to Quit giving 40 days notice;
2. Issue Section 11 Notice to SIC;
3. Issue AT6 form (Notice of Intention to raise proceedings) on the relevant grounds, notice period dependent upon the grounds.
4. Lodge summons at Court for eviction order, and further Court procedure.
In terms of the AT6 form that will have to be prepared, I attach Eviction Schedule detailing the various grounds upon which this can be issued. You will note that as your tenant has less than three month’s rent arrears this can only be raised on a discretionary ground and not a compulsory one. However, perhaps you can advise if any of the compulsory eviction grounds on page one of the schedule would apply. It may be the case that the tenant will have three months or more rent arrears by the time the notice periods have ended.
I know this may seem quite excessive given the tenant is willing to leave the property but as he is applying for social housing the Council will jump on any irregularity in the notice procedure to avoid having to house your tenant. They will most likely advise him that if he leaves the property before you obtain an Eviction Order from the Court that he will be making himself voluntarily homeless. Hopefully accommodation can be found for the tenant before this matter has to be brought to Court but given past experiences with the Council there is no guarantee of this.
Accordingly, please confirm that you wish for me to proceed with the Eviction Order procedure and also advise of any grounds on the Eviction Schedule you think may apply.
Yours sincerely,
Vicky Arthur
If you want to evict based on non payment of rent (which is a discretionary ground of eviction under the legislation) then you have to give a notice to quit with 40 days notice. You would also serve an AT6, I would do that at the same time, although it can be done later, giving at least 14 days of the raising of proceedings in court which you will need to do if the tenant doesn't move out. The court action could take several months if the tenant decides to "play the system". If you want to terminate at the end of the tenancy (in which the court has no discretion) then you have to give two months notice to quit at the next "ish" (end) date which in this case will be no later than one month into three month roll on period. Again an AT6 would be required to give at least 14 days notice of the raising of court proceedings. Your solicitor's advice is exactly right. As to which route to go down I would evict on the ground that the tenancy has come to an end and the court has no discretion but to grant the order. I would simulataneously sue for the rent arrears and also try to get an arrestment order on the basis that the tenant is deliberately trying to get evicted so as to get council housing. I hope that helps. Please leave a positive rating so that I am credited for my time.
JGM and 2 other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.
Many thanks, ***** ***** take it that it is impossible to get an eviction in two weeks when he has not paid rent for three months?
Thanks again, Chris