What is tenant abandonment in Scotland?
Tenant abandonment is when a tenant leaves their rented property permanently without formally ending their tenancy or letting their landlord know. It means the landlord can take steps to repossess the property so it can be rented out to someone new.
Generally, abandonment involves a tenant moving out and no longer treating the property as their main home. It's more than just a long holiday; it's a permanent departure without following the proper legal steps.
How can a landlord be sure a property is abandoned?
Before you can start any legal process for abandonment, you need to be reasonably sure that the tenant has actually left for good. Simply having rent arrears isn't enough proof.
You should make reasonable efforts to confirm the situation. This could include:
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trying to contact the tenant by phone, email, and in writing
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speaking to neighbours to ask if they've seen the tenant recently
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checking if the tenant’s belongings have been removed from the property
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looking for signs like a build-up of mail or rubbish
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contacting the tenant's guarantor, if they have one
It’s a good idea to keep detailed records of all the steps you take to contact your tenant and any evidence you find that suggests the property has been abandoned. This will be important if you need to apply to the First-tier Tribunal for Scotland (Housing and Property Chamber) for an eviction order.
What happens if a tenant abandons a rented property?
If you're confident that your tenant has abandoned the property they rented under a private residential tenancy, you can take steps to formally end the tenancy and regain possession. You must follow the correct legal process.
Using an eviction ground for abandonment
The Private Housing (Tenancies) (Scotland) Act 2016 sets out various grounds for eviction, including one (ie ground 10) that applies when the tenant is no longer occupying the property as their main or only home.
To start this process, you must serve the tenant with a notice to leave. This notice must state the date by which the tenant must move out and specify that you're using ground 10 for the eviction. For abandonment, you must give the tenant at least 28 days' notice.
Ground 10 is a mandatory ground for eviction, meaning that if the Tribunal agrees with the landlord’s evidence, the tenant must leave the property. The Tribunal will generally make an eviction order if it is satisfied that:
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the property is not being used by the tenant or a lawful subtenant (ie someone who is renting the property from the tenant with the landlord’s consent) as their only or main home, and
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the property being unoccupied is not due to the landlord’s breach of their repair and maintenance obligations (eg due to a failure to carry out necessary repairs)
For more details on the eviction process, read Tenant evictions in Scotland FAQs.
What are the risks of wrongly repossessing a property?
It's crucial to be certain that the property has been abandoned before you take any action. If you re-enter the property and change the locks without a Tribunal order, and it turns out the tenant was only temporarily away (eg in hospital or on an extended work trip), you could be accused of carrying out an illegal eviction.
An illegal eviction is a serious criminal offence and can lead to a large fine or even imprisonment. You could also face a civil claim for damages from your tenant. Because the consequences are so severe, it's always best to follow the correct legal procedure.
Due to the complexity of these situations, and as the procedure is different for older assured or short assured tenancies, you should Ask a lawyer for advice if you're unsure how to proceed.
