AA Legal Documents

Serving notice

Contents

The notice you may need to serve on your tenant to start eviction or possession proceedings will depend on whether you are using the rent arrears procedure or the procedure for removal based on termination of the tenancy at the agreed termination date. If you are unsure, read our article on Initial steps for more information.

Rent arrears

If you are applying for possession on the ground of rent arrears, and you have already taken the first steps listed in our article Initial steps, you will need to serve a 'Notice to Quit' on your tenant, together with a 'Notice of Intention to raise Proceedings under section 19 of the Housing (Scotland) Act 1988.'

The Notice to Quit

If your tenant has failed to pay rent after you have made requests for them to do so, you should consider serving a Notice to Quit. This notice requires your tenant's removal from the property by a particular date as a result of rent arrears having accrued. A minimum notice period of 40 days is required. You should also serve a Notice of Intention to raise Proceedings under section 19 of the Housing (Scotland) Act 1988. This is a mandatory notice and we recommend both notices are served simultaneously. Both notices must contain certain statutory wording to be valid.

In order to be valid, the notices must be served by recorded delivery post, or by Sheriff Officers. Ordinary post or hand delivery are not valid methods of service.

Care must be taken to correctly calculate the minimum 40-day notice period. A longer period can, of course, be given.

Where the notices are being served by recorded delivery, the first day of the 40-day period is the day after posting. The earliest date of removal to put in your notices is the 41st day thereafter.

Where the notices are being served by Sheriff Officers, the first day of the 40-day period is the date of service of the notices. The earliest date of removal to put in your notices is the 41st day thereafter.

When calculating the 40-day notice period, you may need to speak to the Sheriff Officers to find out when they will be able to serve the notices. Alternatively, you might incorporate a few extra days into the notice period to allow enough time for service.

If the tenant does not move out of the property within the period stipulated in the notices or if he/she does not pay the arrears and reach agreement with you that they can stay, you may apply to the court for an order to evict the tenant. The order will also demand that the tenant pay you any outstanding rent and may also demand that he/she pay certain costs in applying to the court.

Next steps

If the tenant doesn't pay the rent arrears within the period stipulated in the notices, you may apply to the court to evict the tenant (Taking it to court).

Under no circumstances should you attempt to evict the tenants yourself without a court order, for example, by changing the locks. Doing so is a criminal offence and you may be fined and/or sent to prison.

Termination at agreed termination date

The first step to terminate the tenancy at the agreed termination date stated in the tenancy agreement is to serve a notice under section 33 of the Housing (Scotland) Act 1988 (the 'section 33 notice').

When to serve the section 33 notice

The section 33 notice must be served on the tenant at least 2 months before the agreed termination date stated in the tenancy agreement. If the tenant fails to leave the property at the end of the notice period, then you may apply to the Sheriff Court for a possession order.

A landlord may serve a section 33 notice on the tenant any time after the tenancy has started to confirm that they intend to repossess their property when the tenancy agreement expires. However, they cannot serve a section 33 notice before the tenancy commences or it will be invalid.

In order to be valid, the section 33 notice must be served by recorded delivery post or by Sheriff Officers. Ordinary post or hand delivery are not valid methods of service.

Care must be taken to correctly calculate the minimum 2-month notice period. A longer period can of course be given.

Where the section 33 notice is being served by recorded delivery, the first day of the 2-month period is the day after posting. You must ensure that the date of termination in the tenancy agreement is at least 2 months and one day from that date.

Where the section 33 notice is being served by Sheriff Officers, the first day of the 2-month period is the date of service of the section 33 notice. You must ensure that the date of termination in the tenancy agreement is at least 2 months and one day from that date.

When calculating the 2-month period you may need to speak to the Sheriff Officers to find out when they will be able to serve the section 33 notices. Alternatively, you might incorporate a few extra days into the notice period to allow enough time for service.