In a recently published case the landlord sought an order for recovery of possession before the end of the tenancy. However, due to a poorly drafted lease the action was dismissed, no doubt with an award of expenses against the landlord.
The landlord sought to bring the tenancy to an end, prior to it reaching its ish (the date on which the tenancy agreement terminates), by serving an AT6 (notice of legal proceedings) on the tenant. The grounds for recovery specified in the AT6 were grounds 8, 11 and 12 of Schedule 5 of the Housing (Scotland) Act 1988. In terms of Section 18(6) of the 1988 Act the court can only grant an order for possession prior to the ish should the tenancy agreement make provision for it to be brought to an end on the grounds in question. Clause 1(g) of the lease in question purported to do this by naming the grounds on which the tenancy may be brought to an end. However, the Sheriff referred to a previous case and held that simply referring to the grounds was not sufficient to meet the requirements of section 18(6). The lease must contain the “essential ingredients” of the ground in question.
Clause 1(g) of the lease stated that the landlord “may forthwith” bring the tenancy to an end and the Sheriff considered this to be misleading as a court order is required to recover possession.
The landlord submitted that a Tenant Information Pack (TIP) was given to the tenant prior to the creation of the lease and said that the TIP gave details of the grounds in question. The Sheriff stated that the TIP only gives brief summaries of the grounds. He used the example of ground 8 of the AT6, a key element of which is that the tenant must be in arrears both at date of service of the AT6 and at the date of the first hearing. However, in this case the TIP merely states that the tenant must be in three months arrears. Therefore, the Sheriff held that the TIP did not include the “essential ingredients” of the grounds in question. The action was therefore dismissed.
This case reinforces the advice we have given previously and serves as an important reminder that if a lease is poorly drafted then the landlord may suffer the consequences. They will only be able to the end the contractual tenancy by giving notice to quit at its term. Whereas, if a lease is properly drafted, then the landlord is not always required to serve a notice to quit or otherwise terminate the tenancy before raising proceedings if the requirements of Section 18(6) are met. Moreover, in cases where the landlord has served a notice to quit which is invalid, the Court may nevertheless grant an order for repossession if Section 18(6) applies.
We recommend that landlords and agents consider their leases in light of this case and seek advice on how to comply with the legal requirement.
If you would like anymore information please contact a member of our Housing and Private Letting team.
