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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7208
Experience:  28 years as a practising solicitor.
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This question relates to Scots Law and the Housing Scotland

Customer Question

This question relates to Scots Law and the Housing Scotland Act 1988. Landlords are selling property in which I have been "short assured" tenant for 16 years. Lease due to expire on 31st May. Notice to quit letter (not form) received in February giving date as 30th April. Also was served Form AT6 in which Part 4 stated that proceedings could not be commenced before 1st June. Due to invalidity, wife and I have fallen behind in move preparations and asked for more time (ie until 31st May). Landlords lawyer wrote and stated if not vacated by 30th April, then they would start proceedings. No Section 33 Form served, merely a letter. Am I correct in saying that the NTQ is wrong in giving 30th April as the quit date - and what is my next move?
Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Thank you for your question.

Do you get a new lease every time the old one expires or does the old lease simply renew?

What provisions are there in your lease about notice of termination?
Customer: replied 1 year ago.

The lease renews automatically every year on 31st May. The notice of termination is 2 months. I confess to being somewhat confused, due to the difference between the notice to quit letter, which gives 30th April as the effective date, yet Prt 4 of the AT6 Form states that the earliest date proceedings can be raised is 1st June.


Further email received from the landlords solicitors has a Section 33 form (unsigned) attached with the date 30th April filled in. This is the first Section 33 form I have received.


 


Apologies for long winded reply

Expert:  JGM replied 1 year ago.
If the lease renews automatically each year on 31 May and provides for 2 months notice of termination then the NQ is wrong. The AT6 sounds correct but that can't cure the NQ which is needed where there is a written lease.

If they start proceedings they may fail for not following the procedures. I presume they have no grounds to terminate the lease other than at the ish, ie, end of the period.

Again as s33 notice needs 2 months. See as follows:

"33. Recovery of possession on termination of a short assured tenancy.
(1) Without prejudice to any right of the landlord under a short assured tenancy to recover possession
of the house let on the tenancy in accordance with sections 12 to 31 of this Act, the sheriff shall
make an order for possession of the house if he is satisfied
(a) that the short assured tenancy has reached its ish;
(b) that tacit relocation is not operating;
(c) that no further contractual tenancy (whether a short assured tenancy or not) is for the
time being in existence; and
(d) that the landlord (or, where there are joint landlords, any of them) has given to the
tenant notice stating that he requires possession of the house.
(2) The period of notice to be given under subsection (1)(d) above shall be
(i) if the terms of the tenancy provide, in relation to such notice, for a period of more than
two months, that period;
(ii) in any other case, two months.
(3) A notice under paragraph (d) of subsection (1) above may be served before, at or after the
termination of the tenancy to which it relates.
(4) Where the sheriff makes an order for possession of a house by virtue of subsection (1) above,
any statutory assured tenancy which has arisen as at that ish shall end (without further notice) on
the day on which the order takes effect.
[ (5) For the avoidance of doubt, sections 18 and 19 do not apply for the purpose of a landlord
seeking to recover possession of the house under this section. "

They can't raise eviction proceedings until two months from the s33 notice. And you can't serve that by email. I think the lawyer has made a tissue of errors here.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7208
Experience: 28 years as a practising solicitor.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 1 year ago.


Many thanks for your replies sir. You confirmed what I suspected. Much appreciated

Expert:  JGM replied 1 year ago.
You're welcome.
Customer: replied 1 year ago.


Just as an update - today received (recorded delivery) a Section 33 Notice giving the quit date as 30th April.


 


Signed and dated by the solicitor yesterday!

Expert:  JGM replied 1 year ago.
They are stupid!

I was dealing with a case earlier to day and had cause to look at the rules again.

In summary there are four components when seeking recovery of a property let under a short assured tenancy lease.

1. The tenancy must be at its ish, ie, at its end, before possession is sought, in the absence of rent arrears etc.

2. A notice to quit has to be served to prevent tacit relocation operating, ie, to prevent the lease renewing itself.

3. No further contractual tenancy is in operation.

4. Notice of proceedings has to be be given. An AT6 is not in fact necessary to give notice of proceedings to recover a short assured tenancy as is now made clear by the Private Rented Housing (Scotland) Act 2011. The notice of proceedings, what you refer to as a section 33 notice, can be in any form as long as it gives notice in writing that the landlord wants the house back and is going to raise proceedings. Importantly the minimum period of notice is two months. It can be longer if the lease provides for this but it can't be shorter. 1988 Act section 33(2).

A good book to read on this is Residential Tenancies, Private and Social Housing in Scotland, 3rd Edition, by Peter Robson, which I was looking at paragraphs 11.39 onwards.

Can I say that many, many lawyers get the notice requirements wrong, their case is thrown out and they have to start again. Whilst it is fair to say that the law is unnecessarily complicated by various Acts of Parliament, most solicitors don't read it either and that is why they run into difficulties.
Expert:  JGM replied 1 year ago.
2011 Act:

"Law In Force
34 Notices required for termination of short assured tenancy
In section 33 of the 1988 Act (recovery of possession on termination of a short assured tenancy),
after subsection (4) insert
(5) For the avoidance of doubt, sections 18 and 19 do not apply for the purpose of a landlord
seeking to recover possession of the house under this section."
Customer: replied 1 year ago.


Thank you again. Shelter Scotland is now taking the matter up on my behalf.

Expert:  JGM replied 1 year ago.
You're welcome.

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