Abandonment - Assured and Short-Assured Tenancies
Last updated | 10/05/2010
What are my rights if I suspect my tenant has
abandoned my property?
A landlord's rights are restricted in terms of the Housing
(Scotland) Act 1988 which requires landlords to obtain a court
order before entering or repossessing a property, changing the
locks or terminating the tenancy agreement. This legislation
applies to assured and short-assured tenancies and the requirement
to obtain a court order applies even if it's clear that the tenant
is no longer living in the property.
How can I legally recover the property?
To recover the property legally, the tenancy must be formally
ended. As the landlord, you can raise an action to end the
tenancy on the basis that the tenant has breached the agreement by
failing to live in the property. Sheriff Officers will serve
the relevant Notices at the tenancy address and in these
circumstances, a Sheriff would be able to grant an Order for
recovery of possession. Once this order has been granted, the
landlord is entitled to enter the property and change the
locks.
Why can't I just change the locks straight
away?
Landlords need to be careful to avoid making themselves vulnerable
to civil or criminal action. If for example, the tenant was
to return, they could argue that they had been wrongly
evicted. Section 36 of the Housing (Scotland) Act 1988 says
that the landlord could be liable to pay a tenant damages if they
unlawfully repossess the property. This applies even if the
tenancy agreement contains a clause which specifically details the
action that the landlord may take in the event of an
abandonment. In addition, Section 22 of the Rent (Scotland)
Act 1974 states that it is a criminal offence to unlawfully evict
or harass a tenant to cause them to leave.
What if the tenant has left items in the
property?
Caution should always be taken if a tenant has left items in the
property. If you know where the former tenant is, you should
try to contact them and give them a reasonable period of time to
come and collect their belongings. If you don't know where
the former tenant is, you can report the items to the Police who
are likely to advise that you store the items for a reasonable
period of time. If the value of the items is less than the
storage costs, you can dispose of the items. It is advisable
to record details of the items on an inventory and to photograph
the items. Ideally both the inventory and the photographs
should be witnessed by an independent person. If you want to
sell the items to offset any rent arrears or damage, you
need to get a court order.
Still not sure?
Contact us for advice.
The advisory content on this site is not a substitute
for legal advice. Landlords are encouraged to seek independent
legal advice in relation to landlord and tenant matters and as to
the form and content of tenancy agreements and statutory
notices.
