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When should a Notice to Leave be served?

Wednesday 20 November 2019

A recent decision in the case of Majid v Gaffney and Britton the Upper Tribunal for Scotland decided any eviction ground, including those for rent arrears must exist at the time the Notice to Leave is served.

In this case, the landlord served the tenant a Notice to Leave, which was dated 1 July 2019.

It stated:

“You are in rent arrears of £1525 from rent due 30/4/19, 31/5/19 and 30/6/19. Despite repeated reminders and promises of payment, your account remains in arears.”

Which appears, on the face of it, the ground for eviction is the tenant being in arrears for three consecutive months.

As the tenant failed to remove at the end of the notice period the landlord applied to the First Tier Tribunal to continue with the eviction process, however the application was rejected.

The Tribunal’s view was the tenant was first in arrears on the 30 April 2019 therefore the expiry of the three-month period would be 30 July 2019.  As at the 1 July, the date of the Notice to Leave, the tenant was not in rent arrears for three or more consecutive months they were simply owing rent meaning the ground for eviction had not been satisfied and the application was bound to fail.

Appealing to the Upper Tribunal, the landlord claimed the First Tier Tribunal had erred in law on the basis that an application was permitted to be submitted to include a ground in the Notice to Leave that had not been satisfied yet but it would be by the time of the application.

The Upper Tribunal were not persuaded by the landlord’s argument and emphasised again that the statutory provision is clear, which is, that the ground of eviction must be satisfied at the date of service of the Notice to Leave. If it is not it is invalid.

The decision is contradictory the guidance issued by the Scottish Government:

If you are serving this on your tenant because they are in rent arrears, you can serve this notice as soon as your tenant falls into rent arrears. You will then have to wait until the arrears have accrued over 3 consecutive months before you can make an application for an eviction order to the Tribunal.”

However, it is pertinent to remember this is only guidance.

It is therefore clear, either the ground exists at the time when the Notice to Leave is served or it does not. If it does not the Notice to Leave is invalid and it cannot be founded on as a basis for eviction.

The decision from the Upper Tribunal is binding, unless a higher court decides otherwise and should be followed in all circumstances.