Orkney Islands Council
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Evictions

This is not intended as a precise statement of the law. You may wish to seek advice from an advice centre or solicitor engaged in private practice.

If you want your tenants to leave, first you must ensure that you know what type of tenancy your tenants have. If you are not certain then you should take independent legal advice from either a solicitor or a housing advice centre. You can contact Housing Services for advice and assistance with determining tenancy type.

Please note that you cannot evict any type of tenant in Scotland without an eviction order. If you try to persuade or force your tenants to leave without following the correct legal process then you could be carrying out an illegal eviction. This is a criminal offence in Scotland.

Private Residential Tenancy

In order to end a private residential tenancy you must have valid grounds to do so. For more information on the different grounds please visit the Grounds for eviction web page, available through 'In this section' on the left of this web page.

Serving Notices

Once you have which ground(s) you intend to use you must serve the following notice:

  • Notice to Leave.

All documents are available from the related downloads section of this web page.

Length of Notice

The length of notice required on the Notice to Leave will depend on which of the 18 eviction ground(s) the landlord is using to end the agreement and how long the tenant has lived in the property.

At least 28 days' (or 4 weeks') notice must be given to the tenant if:

  • On the date that the tenant receives the Notice to Leave, the tenancy has been running for six months or less.

Or

The only eviction ground(s) set out in the landlord's notice to leave is/are that the tenant:

  • Is not occupying the property as the tenant's only or main home.
  • It has breached the Agreement.
  • Is in rent arrears for three or more months in a row.
  • Has been found guilty, in a court, of certain crimes.
  • Has been involved in antisocial behaviour.
  • Has been involved with a person who has been found guilty of certain crimes or has been involved in antisocial behaviour.

In all other cases, the tenant must get at least 84 days' (or 12 weeks) notice.

At least 84 days' (or 12 weeks) notice must be given to the tenant if:

  • On the date that the tenant receives the landlord's notice, the tenancy has been running for more than six months;

And

The landlord's notice includes any of the eviction ground(s) not mentioned above.

There are 18 grounds that allow a landlord to end a tenancy:

  • 8 of those grounds are always mandatory - that means that the Tribunal must grant an Eviction Order if any one or more of those grounds is found by the Tribunal to exist.
  • 8 of those grounds are discretionary - that means that, even if the Tribunal finds that these grounds exist, the Tribunal must decide whether or not the tenancy can be ended on these grounds.
  • 2 of those grounds are part mandatory and part discretionary - so in some cases the Tribunal must grant an Eviction Order and in others the Tribunal will decide whether or not the tenancy can be ended on either of those grounds.

How can the Notice to Leave be served?

At the beginning of the tenancy the landlord and tenant can agree that notices and letters are sent by e-mail. If it has been agreed that the landlord should send correspondence by mail then the Notice to leave should be sent by recorded delivery. It is important to note that when sending either by e-mail or recorded delivery that an extra 2 days should be added to the notice period to allow time for delivery, this is required by law.

Assured Tenancies

In order to end an assured tenancy you must have valid grounds to do so. For more information on the different grounds please visit the Grounds for eviction web page, available through 'In this section' on the left of this web page.

Serving Notices

Once you have decided which ground you intend to use you must serve the following notices:

  • Notice to Quit.
  • AT6.

All documents are available from the related downloads section of this web page.

Length of Notice

The length of notice required on the notice to quit will depend on the length of the tenancy:

  • If the tenancy is for a week, fortnight or a month then at least 4 weeks notice is required.
  • If the tenancy is for 3 months then at least 31 days notice is required.
  • If the tenancy is for 4 months or more then at least 40 days notice is required.

Longer Periods of Notice

A longer period will be required if stated on the tenancy agreement. However any shorter period written into the tenancy agreement is not valid.

It is important to remember that a notice to quit terminates the contractual tenancy but does not end the tenants right to occupy the property. In order to end your tenants right to occupy you must serve an AT6 and obtain an eviction order. The length of notice required in the AT6 depends on the grounds being used for eviction.

If Grounds 1, 2, 5, 6, 7, 9, or 17 are being used, then two months notice is required. For any other ground, two weeks notice is required. Legal proceedings must be started within 6 months of the expiry of the AT6 or it will cease to be valid.

Short Assured Tenancies

If you are going to end a short assured tenancy during the fixed period then you should follow the same process as for an assured tenancy. However, if you are ending the tenancy because the fixed period has come to an end then you must follow the process below.

  • Serve a Notice to Quit giving at least two months notice. A longer notice period may be required if stated on the tenancy agreement
  • Serve a Notice in accordance with Section 33 of the Housing (Scotland) Act 1988 giving at least two months notice.
  • Serve a notice of intention to raise proceedings for repossession. Normally an AT6 is used for this although you may use another format if you wish. Again this notice must give at least two months notice.

All documents are available from the Related Downloads section of this web page.

Notice to Quit: Recorded Delivery

The notice to quit must always be served by recorded delivery or by Sheriff Officers. You should keep the recorded delivery slip with your copy of the notices, as this may be required later.

The notice to quit cannot be served after the other two notices, although you may send all three notices at the same time if you wish.

Please ensure that you serve the notice to quit no later than two months prior to the end date of the fixed period of the tenancy. You should also allow time for the notice to be delivered. If you have missed this date then you should seek independent advice about the correct date to serve the notice.

Notifying the Council

From 1 April 2009, it is a legal requirement for a landlord to notify the Council of an eviction action. You must notify the Council at the time of lodging the case with the First Tier Tribunal. A case can be lodged with the Tribunal after you had served the appropriate notices and they had expired without the tenant moving out. If you reach this point and intend to take eviction action to recover the property you must ensure that you notify the Council. This is done by completing a standard form Section 11 Notice and sending it by email to Homelessness and Advice section or by post to the Team Leader (Housing and Homelessness), Housing Services, Orkney Islands Council, Council Offices, Kirkwall, KW15 1NY. Please contact the Homelessness and Advice Section for further information and advice.

The advice given in this section is intended as general advice. You may wish to contact an advice centre or solicitor engaged in private practice for advice specific to your situation.

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