Attempting to evict someone without taking legal advice at the outset can lead to a prolonged and costly battle with tenants. Many landlords enter into tenancies without knowing when they can, and cannot, legally evict a tenant.

Below are some of the most frequently asked questions about evictions:

I have tenants, but their lease has come to an end. Can I evict them?

In order to correctly evict tenants, certain notices have to be served. The notice which is used depends on the type of lease the tenant has. If the wrong notice is used, or an incorrect notice period is given, then the tenant cannot be evicted.

In some cases, failing to intimate the correct notice to a tenant can lead to “tacit relocation”, where a tenant is entitled to remain in the property.

My tenants haven’t paid their rent this month? Can I evict them?

All other things being equal, unlikely. For example, tenants who have assured tenancies require to be three months in arrears before they can be evicted on this ground. In some cases, irritancy clauses allow the landlord to evict, but advice should be taken in every case.

It’s my property - why can’t I just change the locks?

In granting a lease, a landlord grants a tenant the right to be in the property. Until this right is legally brought to an end, the tenant can remain in the property.

A landlord who decides to change the locks without following the correct legal procedure are committing a criminal offence, as well as leaving themselves at risk of a compensation claim.

My tenants are refusing to pay because there is a problem with the property. Can they do this?

In certain circumstances, yes. As a landlord, you have a duty to keep the property in a basic standard of repair. If tenants have given you notice of repairs which need done, you require to carry out these repairs in a reasonable period of time. What is “reasonable” depends on the nature of the repair. If this is not done, a tenant can retain rent in order to compel the landlord to carry out the repair.

However, if a tenant does retain rent for this reason, they will usually have to pay the rent in full once the repair is carried out. (Although, in some cases, the rent will not be payable at all.)

What happens if I have given the tenant notice, and they remain in the property?

In these cases, a court order is required if it has not been granted already. This requires a summons to be prepared. In some cases, if the correct notice has been given, a Sheriff must grant the order for eviction. However, there are some circumstances, particularly in the case of Assured Tenancies, where the Sheriff has discretion to refuse to grant an order.

Once a court order, known as a decree, is granted, Sheriff Officers can be sent to the property to formally carry out an eviction, and change the locks if required.

How long does it take to get a court order?

Firstly, tenants must be served with the correct notices.

For Short Assured Tenancies, this can be done by serving a Notice called a Form 33 two months before the tenancy is due to end. A Notice to Quit must also be served, and this is normally done along with the Form 33.

In order to end a Short Assured Tenancy prior to the tenancy coming to an end, a valid ground for eviction (for example, non-payment of rent) is required. Firstly, a Notice to Quit is served, giving the tenant 40 days’ notice to leave the property. Another Notice, which gives the tenant details of the ground(s) of eviction, must also be served. (This is called the Notice of Intention to Raise Proceedings, or Form AT6.) The period of notice depends on the ground of eviction, but can range from two weeks to two months. The Notice to Quit and Notice of Intention to Raise Proceedings can be served together.

For Assured Tenancies, an eviction is dealt with in the same way as a Short Assured Tenancy eviction prior to the end of the tenancy. (i.e. by serving a Notice to Quit and a Form AT6, as described above) Again, a valid ground for eviction is required.

If the tenant remains in the property, court action must be raised. Ordinarily, the Summons is warranted by the court in roughly 7 days, and a hearing will be fixed approximately six weeks in advance. The Summons must thereafter be served on the tenant, giving them enough time to respond prior to the hearing.

All cases involving eviction call in court, but if the tenant does not appear, the Sheriff will check that the notices have been served correctly and if everything is in order, grant decree. (Depending in the lease and reason for eviction, a Sheriff may be obliged to do this, however in other cases the Sheriff will have discretion.) Decree will usually be available 14 days after the hearing. Once the decree is in place, the eviction can take place.

Occasionally, a tenant will defend the court action. In order to do this successfully, they must have a valid defence. For example, if a tenant was being evicted on the grounds of anti-social behaviour, they may wish to prove that the alleged behaviour did not take place.

If the Sheriff decides that there may be a defence, they will assign a hearing for evidence to be led, and make a decision afterwards. Typically, this hearing will be assigned a minimum of two months in advance, depending on other court business. It is usual for expenses to be awarded to the successful party.

My tenants won’t let me into the property! What can I do?

In the absence of any specific clause in the lease, tenants are required to give a landlord access for assessment and repair upon receiving “reasonable notice”. Assuming there are no access provisions in the lease, as a rule of thumb a reasonable period is no less than 24 hours.

What is the basic standard of repair?

In 2007, the “repairing standard” to which landlords must adhere was defined by statute.

• the property must be wind and watertight
• the property must be fit for the tenant to live in
• the structure and exterior of the property (for example, the walls, roof, gutters and drains) must be in reasonable repair and working order
• the installations for the supply of water, gas, electricity, and for sanitation, space heating and heating water must be in a reasonable state of repair and in proper working order
• any fixtures, fittings or appliances provided by the landlord (such as washing machines, carpets etc) must be in a reasonable state of repair and in proper working order
• any furnishings provided by the landlord must be capable of being used safely for the purpose for which they are designed
• the property must have suitable smoke detectors

What different types of tenancy are there?

In Scotland, the most common types of private tenancy are the Assured Tenancy, and the Short Assured Tenancy. However, these are by no means the only type of tenancy, and others (such as Scottish Secure Tenancies) are commonly used by local authorities and housing associations.

A Short Assured Tenancy is for a minimum of six months, and is preceded by the landlord serving a Form AT5. This lets the tenant know that they have a Short Assured Tenancy. If a tenant has a Short Assured Tenancy, the landlord can carry out an eviction at the end of the tenancy without giving a reason, provided that certain procedures have been followed.

With an Assured Tenancy, the landlord requires an order from the court before a tenant can be evicted. This is preceded by a Notice to Quit, and a Form AT6 which states the ground(s) on which the tenant is being evicted.