24th November 2021

Landlords serving notice: I reserve the right to change my mind. Or do I?

With the recent easing of Covid-19 restrictions in Scotland, landlords are now able to raise proceedings at the First Tier Tribunal for an eviction order i.e. to remove their tenant from the property. However, certain protections remain in place for tenants. In order to raise proceedings, the landlord must first serve notice to leave on the tenant. In the notice, the landlord must state what ground(s) they wish to evict on. The ground(s) for eviction vary depending on the type of tenancy agreement in place. Most recent tenancy agreements will be a Private Residential Tenancy, with the grounds set out in the Private Housing (Tenancies) (Scotland) Act 2016 to include rent arrears of over three months and that the landlord wants to move into the property. But what happens if a landlord serves notice for one reason and then changes their mind? The recent case of Lesley Michelle Munro and Grant Charles McNicoll v David Ross explored this.

In this case, the tenants rented a property in which the landlord served notice of eviction on the ground that the landlord intended to live in the property. In response to this, the tenants served their own notice of termination, allowing the lease to be terminated in January 2021. The landlord then marketed the property for sale in February 2021, despite this not being the ground of eviction contained in the notice. The tenants then made an application for a wrongful termination order.

What happened at the hearing?
It was noted that there was a clear change of mind by the landlord from advising of his intention to live in the property to deciding to sell it. The tenants provided evidence that they were happy in the property and would not have left if they had not been served with the original notice. The tenants immediately started looking for alternative accommodation and provided their own notice when they realised they were able to gain entry to their new property before the notice period expired. During this period, the landlord maintained that he was going to move into the property.

The tribunal attempted to examine the reason behind the landlord changing his mind from moving into the property to selling in around two and a half weeks. No coherent explanation was provided and the landlord simply suggested it may be because of financial difficulties, health problems and the Covid-19 pandemic.

The tribunal concluded that the landlord misled the tenants which caused them to surrender the property. As a result, the tribunal made a wrongful termination order and awarded the applicants £2,400.

What is a wrongful termination order?
A wrongful termination order can be granted where a tenant was misled into vacating the property by the landlord. This can include where notice has been served on the wrong ground. The landlord can be liable for up to six months’ rent.

Why is this important?
Due to the Covid-19 pandemic, notice periods have changed under the Coronavirus (Scotland) Acts, meaning that different notice periods apply for different grounds. If you are seeking to terminate a tenancy on the basis of the landlord living in the property, three months’ notice is required. If you wish to terminate on the basis that you are going to sell the property, six months’ notice is required. Serving on the wrong ground can result in the tenant not being given the correct notice period in which to find alternative accommodation.

What can I do if this happens to me?
If you think your tenancy has been terminated wrongfully, an application can be made to the First Tier Tribunal to seek an award of up to six months’ rent. The amount awarded will be dependent upon the severity of the breach, the impact and several other factors. Like this case, you can still make an application where you seek to end the tenancy early following a landlord’s notice to leave.

For information and help on any landlord and tenant issues, please speak to a member of the Blackadders Insolvency and Dispute Resolution Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth, and across Scotland.

Susan Currie, Senior Solicitor
Dispute Resolution
Blackadders LLP




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