First Wrongful Termination Order issued in Scotland

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All grounds for eviction in Scotland are now discretionary. This means the housing tribunal must consider the reasonableness of the request of an eviction order.

Currently the Scottish Government has imposed an eviction ban to continue in Tier 3 and 4 areas until 31 March 2021. The ban only applies to the ‘enforcement’ part of eviction proceedings. It means sheriff officers can’t remove a household from a property while this ban is in place.

There are some exceptions to this ban, including if the eviction was granted due to criminal or antisocial behaviour.

Otherwise, and in normal times, evictions can take place. Any private residential tenancy that started in Scotland on or after 1 December 2017 is governed by the Private Housing (Tenancies) (Scotland) Act 2016 which means tenants have more protection than previously, including:

• No more fixed terms – private residential tenancies are open ended, meaning a landlord can’t ask tenants to leave just because they have been in the property for 6 months as they could with a short assured tenancy.
• Restricted rent increases – rent can only be increased once every 12 months (with 3 months notice) and if tenants think the proposed increase is unfair they can refer it to a rent officer.
• A longer notice period – if a tenant has lived in a property for longer than 6 months the landlord will have to give at least 84 days notice to leave (unless term have been breached in the tenancy).
• Simpler notices – the notice to quit process has been scrapped and replaced by a simpler notice to leave process.
• A Model Tenancy Agreement – the Scottish Government has published a model private residential tenancy that can be used by landlords to set up a tenancy.

Following the introduction of the new tenancy rules, one landlord has now been the first to be penalised for breaching the rules. The landlord evicted a tenant on concocted and wrongful grounds. This has caused the Housing & Property Chamber of the First-tier Tribunal for Scotland (FTS) to awarded its first Wrongful Termination Order (WTO).

The landlord had provided the tenant with a Notice To Leave amid a fractious relationship, using the stated ground that the landlord and family wanted to move into and occupy the premises as their main home.

This original eviction claim was opposed by the tenant arguing that it was not credible to believe that the landlord and his family genuinely wanted to move out of a three-bedroom property they lived in to move to a one-room studio flat.

Despite this argument, the tribunal granted the order for eviction explaining that the Scottish Parliament’s legislation had set “a very low bar” for landlords to have to meet.

Wrongful Termination Order

However, as the tenant observed that following the eviction, very quickly repairs and redecoration had been carried out and new tenants had been moved into the flat.

The tenant then applied again to the tribunal assisted by the Community Help & Advice Initiative (CHAI) for a Wrongful Termination Order. CHAI outlined the history of the tenancy and the ground for eviction relied on, and showed that the landlord and his family had not moved into the studio flat.

The tribunal concluded that the landlord had misled the tribunal when the eviction order was granted and determined that the tenant was entitled the WTO due to the wrongful termination by eviction order. It awarded the tenant a financial penalty of £1,350, equivalent to three times the monthly rent under the original tenancy agreement.

(Image – Scottish Parliament building – Holyrood)

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