What is a common law tenancy?
A common law tenancy is a tenancy that exists outside of the various housing and rent acts that apply in Scotland (eg the Private Housing (Tenancies) (Scotland) Act 2016). A common law tenant is anyone who rents property under a common law tenancy.
There are various types of common law tenancies, including student lets, holiday lets, and lodgers. A lodger is someone who rents a room in a house where their landlord lives in, and who shares facilities such as the kitchen and bathroom with their landlord. Such landlords are often referred to as resident landlords.
What rights do common law tenants have?
Common law tenants have fewer rights than private residential tenants, assured tenants, or Scottish secure tenants. Your common law tenant will have exclusive possession of part of the property (eg they will have their own bedroom). Exclusive possession means that you (as the resident landlord) are not entitled to enter their room without their permission.
Common law tenants are also easier to evict than other types of tenants.
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.
However, you will still need a court order to evict common law tenants if they do not leave your property after being asked (more on this below).
For more information on the different types of tenancies, read Residential tenancies in Scotland.
What is the eviction process for common law tenancies?
Because common law tenants have fewer rights than other tenants in Scotland, you can generally evict them more easily and in more circumstances than other types of tenants. This eviction process typically involves you serving a written notice (known as a ‘notice to quit’) on the common law tenant and giving them the correct notice period (ie the time period the common law tenant has before having to move out).
When can you evict a common law tenant?
As a general rule, you must comply with all terms of the common law tenancy agreement (eg your Lodger agreement). This means that any requirements set out in your contract with the common law tenant (eg specifying how much notice must be given to end the contract and/or how any such notice must be given) must be complied with. Note that you cannot give common law tenants less notice than what they are legally entitled to (more on this below), even if the contract says so.
Common law tenants can be evicted during the fixed term (ie the initial agreed upon duration of the common law tenancy):
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at any time - if you have a written agreement (eg a Lodger agreement) that allows you to serve a notice to quit at any time. You must give common law tenants at least four weeks’ notice of their eviction
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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 common law tenant during the fixed term if they have broken a term of the agreement (eg keeping a pet when this was prohibited in their contract). You must give common law tenants four weeks’ notice
You can always ask a common law tenant to leave your property at the end of the agreement’s fixed term (ie when the common law tenancy comes to an end). How much notice you must give the common law tenants depends on the length of the tenancy’s fixed term (ie how long the tenancy lasted). If the fixed period is:
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less than a year - you must give at least 28 days’ notice
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more than a year - you must give at least 40 days’ notice
What if no fixed term was agreed in the contract?
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.
What if the contract was verbal and there is uncertainty about the length of the fixed term?
In these circumstances, it can be harder to determine when the contract ends, and this will have to be decided based on the facts of the situation. Facts that can help in determining the end of the contract include:
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the date on which the common law tenant moved into the property
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when the common law tenant first paid rent, and when it was payable going forward
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any statements made at the start of the common law tenancy
How much notice you need to give typically depends on the length of the tenancy.
Due to the complexity associated with verbal common law tenancies, it is advisable to Ask a lawyer for advice on your situation before trying to evict a common law tenant who has a verbal contract.
What if I don’t give a notice to quit at the end of the fixed term?
If you don’t give your common law tenant notice at the end of the fixed period, and/or they do not give notice of their intention to move out, the agreement will renew itself automatically. This is known as tacit relocation.
The common law tenancy will either renew itself:
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for the renewal period specified in the agreement (eg the initial fixed term may be for two months with monthly renewals after that), or
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for the same duration as the original fixed term, if no other renewal period is specified (eg if the initial fixed term was three months, the agreement will renew for another three months)
What if the common law tenant doesn’t leave?
Before seeking to remove a common law tenant from your property at the end of the notice period, make sure that the notice you gave them was correct. Especially make sure to double-check all notice periods to ensure that you are giving the common law tenant the correct amount of notice.
If a valid notice to quit was served on them, common law tenants have to move out when the notice period ends. If they don’t do this, you can take physical steps to evict the tenant. For example, by:
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changing the locks while the common law tenant is away (eg the lock to the common law tenant’s room)
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removing the common law tenant’s belongings from the property
You must not force the common law tenant to leave by threatening or harassing them or making the living situation so unbearable that the common law tenant leaves. This may result in your local council or the police getting involved.
Ask a lawyer if you have any questions or concerns about evicting common law tenants, and see Shelter Scotland for detailed guidance on common law tenancies.
