Round #1133

Tenant has a private residential tenancy of a flat in Glasgow that commenced 1 February 2024 at a rent of £950 pcm. The landlord (resident in Edinburgh) wrote on 2 April 2025 saying "I am serving Section 21, you have two months to leave". The tenant rents in Scotland; the letter cites English statute. Which regime governs and what notice is required to recover possession of a private residential tenancy in Scotland?

# Private Residential Tenancy in Scotland: Governing Regime and Possession Procedure ## 1. Jurisdiction: Which Regime Governs? The tenancy **is governed exclusively by Scots law** and the Scottish statutory framework. The relevant legislation is: - **Private Housing (Tenancies) (Scotland) Act 2016** ("the 2016 Act") - **The Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017** (SSI 2017/297) - **The Private Residential Tenancies (Information for Tenants) (Scotland) Regulations 2017** ### Why Section 21 Housing Act 1988 Has No Application Whatsoever | Point | Explanation | |---|---| | **Territorial extent** | The Housing Act 1988 (England & Wales) does not extend to Scotland — s.1 and the long title confirm it applies to England and Wales only | | **No assured shorthold tenancy exists in Scotland** | The AST (which s.21 terminates) is a creature of the 1988 Act as it applies in England & Wales; there is no equivalent Scottish form | | **The 2016 Act abolished fixed-term private tenancies in Scotland** | From 1 December 2017 all new private residential tenancies are governed by the 2016 Act; assured tenancies under the Housing (Scotland) Act 1988 can no longer be created for new lets | | **The landlord's letter is a nullity** | A purported "Section 21 notice" served on a Scottish private residential tenancy has **no legal effect whatsoever** — it is not a valid notice to leave, creates no obligation on the tenant to vacate, and cannot found any proceedings before the First-tier Tribunal | The tenant can **safely disregard** the letter as legally ineffective, though they should retain it. --- ## 2. The Correct Regime: Private Housing (Tenancies) (Scotland) Act 2016 ### Key Characteristics of a Private Residential Tenancy (PRT) - **No fixed term / no end date**: a PRT is an open-ended tenancy; it does not expire by effluxion of time (s.3) - **No "no-fault" ground for repossession**: unlike s.21 in England, there is **no mechanism** for a landlord to recover possession simply because they want the property back without reason - **Security of tenure**: a tenant may only be removed if the landlord establishes one of the **18 prescribed statutory grounds for repossession** --- ## 3. The Possession Process: Step-by-Step ### Step 1 — Notice to Leave (s.62 and Schedule 3, 2016 Act) The landlord must serve a **Notice to Leave** in the **prescribed form** (Form NTL — SSI 2017/297, Schedule 1). #### Minimum Notice Periods | Circumstance | Minimum Notice Period | |---|---| | Tenant has occupied **less than 6 months** | **28 days** | | Tenant has occupied **6 months or more** | **84 days (12 weeks)** | | Any ground involving the tenant being at fault (e.g. rent arrears, antisocial behaviour) | **28 days** regardless of length of occupation | On the facts: the tenancy commenced **1 February 2024**; by April 2025 the tenant has been in occupation for over **14 months** — therefore the minimum notice period for a non-fault ground is **84 days (12 weeks)**. The Notice to Leave must: - Be in the prescribed form - Specify the ground(s) relied upon (from Schedule 3) - State the date on which the notice is given - State the date by which the tenant is required to leave (no earlier than expiry of the notice period) ### Step 2 — The 18 Grounds for Repossession (Schedule 3, 2016 Act) The grounds fall into two categories: #### Mandatory Grounds (Tribunal *must* grant eviction if established) 1. Landlord intends to sell the property 2. Landlord intends to sell with a mortgage lender in possession 3. Property subject to a mortgage and lender requires vacant possession 4. Landlord intends to refurbish (major works) 5. Landlord intends to live in the property 6. Family member of landlord intends to live in the property 7. Property required for religious purpose (e.g. minister of religion) 8. **Rent arrears** (3 or more consecutive months, or at least one month's rent outstanding for 3+ months — Note: subject to pre-action requirements) 9. Criminal behaviour 10. Anti-social behaviour 11. Association with person guilty of anti-social behaviour 12. Landlord's registration revoked or refused 13. HMO licence refused or revoked 14. Property no longer let for private residential tenancy (e.g. employee accommodation) #### Discretionary Grounds (Tribunal *may* grant eviction if reasonable to do so) 15. Breach of tenancy agreement 16. Property required for non-residential use 17. Overcrowding statutory notice 18. Property subject to planning condition limiting residential use ### Step 3 — Application to the First-tier Tribunal for Scotland (Housing and Property Chamber) If the tenant does not vacate after expiry of a valid Notice to Leave, the landlord **cannot** instruct sheriff officers or take self-help remedies. The landlord must: 1. Apply to the **First-tier Tribunal (Housing and Property Chamber)** for an **eviction order** (s.51, 2016 Act) 2. The application may be made no earlier than the day after the notice period expires 3. The Tribunal considers whether the ground is established (and, for discretionary grounds, whether it is reasonable to grant eviction) 4. If satisfied, the Tribunal issues an **eviction order** ### Step 4 — Enforcement Only once an eviction order is granted can the landlord enforce it, and only through **sheriff officers** executing the order via the sheriff court. Unlawful eviction and harassment remain criminal offences under the Rent (Scotland) Act 1984 and the 2016 Act. --- ## 4. Additional Protections Relevant to This Tenancy ### Rent Increases - Rent can only be increased once per 12-month period under s.20, 2016 Act using a **rent-increase notice** (Form RIN) - The tenant may refer any proposed increase to **Rent Service Scotland** / a rent officer - Note: **Cost of Living (Tenant Protection) (Scotland) Act 2022** rent cap provisions have now largely expired (the final cap ended 31 March 2024), so normal rules under the 2016 Act apply ### Landlord Registration - The landlord must be **registered** on the Scottish Landlord Register (Antisocial Behaviour etc. (Scotland) Act 2004, Part 8) - An unregistered landlord **cannot** lawfully serve a Notice to Leave or apply to the Tribunal until registered (Ground 12 cuts both ways — the tenant can use this as a defence) --- ## 5. Practical Advice Summary | For the Tenant | Detail | |---|---| | **Ignore the s.21 notice** | It is legally void and of no effect in Scotland | | **Do not vacate** on the basis of this letter | No valid notice has been served; no obligation to leave arises | | **Keep the letter** | Evidence of potential harassment or unlawful eviction attempt | | **Seek advice** | Shelter Scotland (0808 800 4444), Citizens Advice Scotland, or a Scottish solicitor | | **Check landlord registration** | Via Landlord Registration Scotland website | | **No valid eviction** can occur | Without a valid Notice to Leave in prescribed form citing a Schedule 3 ground, followed by a Tribunal eviction order | --- ## Summary The **Private Housing (Tenancies) (Scotland) Act 2016** governs exclusively. Section 21 of the Housing Act 1988 has **no legal existence** in Scotland. To recover possession, a Scottish landlord must: (1) serve a valid **Notice to Leave** in prescribed form citing at least one of the **18 Schedule 3 grounds** with **84 days' notice** (given this tenancy's length); and (2) if the tenant does not leave, obtain an **eviction order from the First-tier Tribunal (Housing and Property Chamber)**. The landlord's letter achieves nothing and the tenant is under no legal obligation to leave.

## Governing Regime **Scots law governs exclusively.** The tenancy is of heritable property situated in Scotland; the *Private Housing (Tenancies) (Scotland) Act 2016* ("the 2016 Act") applies by operation of law regardless of where the landlord resides or what notice they purport to serve. **Section 21 of the Housing Act 1988 has no application whatsoever in Scotland.** The letter of 2 April 2025 is a nullity as a notice to quit. It creates no legal obligation on the tenant to leave, and no court or tribunal could act on it. --- ## The Correct Regime: Private Residential Tenancy (PRT) A tenancy of a residential flat in Scotland commencing 1 February 2024 is a **private residential tenancy** under the 2016 Act (s.1). PRTs have **no fixed term and no contractual end date** — they continue indefinitely until ended by one of the statutory mechanisms. --- ## How a Landlord Recovers Possession ### Step 1 — Notice to Leave (s.50 and Schedule 3) The landlord must serve a **Notice to Leave** in the prescribed form specifying one or more of the **18 statutory grounds** in Schedule 3 to the 2016 Act. There is no ground of "no fault" eviction equivalent to s.21; a ground must be made out. Common grounds include: | Ground | Notice Period | |---|---| | Landlord intends to sell | 84 days (tenancy ≥ 6 months) | | Landlord or family member intends to occupy | 84 days | | Tenant in rent arrears (persistent) | 28 days | | Tenant in three months' rent arrears | 28 days | | Breach of tenancy agreement | 28 days | | Property required for religious purpose | 84 days | Because this tenancy commenced 1 February 2024 and is now well beyond six months, the **minimum notice period is 84 days** for most grounds (s.50(3)). ### Step 2 — Application to the First-tier Tribunal (Housing and Property Chamber) If the tenant does not vacate after the notice period expires, the landlord **cannot** raise proceedings in the sheriff court on eviction grounds. The landlord must apply to the **First-tier Tribunal for Scotland (Housing and Property Chamber)** under s.51. The Tribunal determines whether the ground is established and whether it is reasonable to grant an eviction order (for discretionary grounds). ### Step 3 — Eviction Order and Enforcement If the Tribunal grants an eviction order and the tenant remains in occupation, the landlord applies to the sheriff court solely for a **warrant for ejection** — the court has no discretion to revisit the merits at that stage. --- ## Position of the Tenant The tenant may **ignore the letter of 2 April 2025** with complete confidence. No valid notice has been served. The tenancy continues. The tenant should: 1. Write to the landlord noting that s.21 HA 1988 does not apply in Scotland and that the purported notice has no legal effect. 2. Retain all correspondence. 3. Continue paying rent (non-payment would give the landlord a genuine statutory ground). 4. Contact **Shelter Scotland** or a solicitor if the landlord attempts harassment or unlawful eviction, both of which carry criminal liability under the *Housing (Scotland) Act 1988*, s.36. --- ## Summary The landlord's letter has no legal effect. To recover possession lawfully, the landlord must serve a statutory Notice to Leave citing a Schedule 3 ground with at least 84 days' notice, and — if the tenant does not leave — apply to the First-tier Tribunal. There is no equivalent of s.21 no-fault eviction in Scotland.