What rights do common law tenants have?
Common law tenants have fewer rights than private residential tenants, assured tenants or Scottish secure tenants. Common law tenancy agreements can be either in writing or verbal. For more information on the different types of tenancies, read Residential tenancies in Scotland.
However, you will still need a court order to evict such tenants if they do not leave your property after being asked.
Your common law tenant will have ‘exclusive possession’ of part of the property (for example, they will have their own bedroom). Exclusive possession means that you are not entitled to enter their room without their permission.
You will need to serve a notice to quit and this should be in writing. It will usually have to give the tenant four weeks to move out.
When can you evict a common law tenant?
During the fixed term:
at any time - if you have a written agreement (for example, a Lodger agreement) it may allow you to serve notice at any time. It must be at least 4 weeks’ notice
when the common law tenant has broken a condition of the agreement - if there is nothing else in the agreement, you can only evict a tenant during the fixed term if they have broken a term
At the end of the tenancy - you can ask them to leave at the end of the fixed term.
If the fixed period is less than a year you must give at least 4 weeks’ notice
if the fixed term is more than a year, you must give at least 40 days’ notice
Note that if you don’t give your common law tenant notice at the end of the fixed period, it will renew itself for the same duration.
If no fixed term was agreed when the common law tenant moved into the property, it is generally assumed that the agreement was for one year from the date the common law tenant moved in or first paid rent. Where this is the case, the landlord can end the tenancy at the end of the year by giving at least 40 days’ notice.
If you do not serve your common law tenant the correct notice or harass them to move out, then this will be considered a criminal offence. Forcing a lodger to leave their home is considered illegal eviction. See Shelter Scotland for more information on illegal evictions.
What if the common law tenant doesn’t leave?
If a common law tenant doesn’t leave at the end of the notice period, you can apply for an order from the Sheriff Court to get them to leave. If the tenancy is coming to an end and you have given the correct notice, or if you can prove they have broken a condition of the agreement, you will be given an automatic order.
Note that, as of 6 September 2022, an eviction moratorium has been in place in Scotland, but this does not apply to common law tenants.
If the common law tenant stayed in the property after the notice has expired without a good reason, the court may order the tenant to pay damages (eg your legal fees).