The Housing (Scotland) Act 2001 (2001 Act) allows the landlord of a Scottish Secure Tenancy to recover an abandoned property without the need for court proceedings. Section 17, 18 and 19 of the 2001 Act deal with this procedure.
The procedure can only be applied where the landlord has reasonable grounds for believing that:
- the house is unoccupied; and
- the tenant does not intend to occupy it.
To ascertain if this is the position the Housing Association should carry out diligent inquiries and retain a record of such inquiries. They should also ensure that information from third parties such as the police, social work departments or councils is double checked as far as possible. For instance, if you are informed someone was recently released from prison you should ensure you check information with more than one source before proceeding with this procedure.
If following these inquires the Association is satisfied that a property meets the above criteria, the Association must serve a notice on the tenant which states that the landlord has reason to believe the property is unoccupied and that the tenant does not intend to occupy it.
The notice should specify that the tenant is required to inform the landlord within 4 weeks of service of the notice if the tenant intends to occupy the property. Finally, the notice must also state that the property will be recovered by service of a second notice if no contact is made within that 4 week period all in line with Section 18 of the 2001 Act.
If contact is made by the tenant within the 4 week period after the first notice is served, then the property may no longer be recovered via the abandonment procedure.
Before serving the second notice, the landlord must make such inquiries as necessary to be satisfied that the property remains unoccupied and that the tenant does not intend to occupy it. These may include interviewing neighbours, support agencies, or legal representatives. Records should be kept of these enquiries. Do not forget these are inquiries you should make after service of the first notice and before service of the second notice. There is a specific requirement for these inquiries contained in the Act and failure to complete these between the first and second notice will allow a tenant to challenge the abandonment procedure.
Once the second notice is served this brings the tenancy to an end immediately.
- The property is deemed to be unoccupied only where it is entirely empty. That is to say, for the purposes of abandonment proceedings, it is irrelevant who is residing in the property. Even if the property is being inhabited by sub-tenants or friends and family, then it is deemed to be occupied and abandonment proceedings cannot be used.
- Sometimes, a landlord has reason to believe a property has been abandoned where there are ongoing court proceedings in respect of that property – for example, due to rent arrears. Abandonment proceedings cannot be used to recover a property where the tenant is defending a court action to recover the property. If a court action for recovery of possession is being defended, that would suggest that there is an intention to occupy.
- Additionally, where the tenant is residing elsewhere, such as in prison, in a care home, or is abroad, the landlord cannot assume that the tenant has no intention to reside in the property. The abandonment procedure should not be used in those situations.
Remember, the Association should be able to demonstrate that it has met all its obligations in making enquiries and serving the notices correctly.
A tenant who is aggrieved may raise a summary application to challenge the validity of the notices served within 6 months of the second notice being served. Where you have failed to complete any of the relevant steps in section 17 and 18 of the 2001 Act the tenant may seek one of the remedies contained in Section 19 which includes reinstatement of the property or provision of other suitable accommodation where you have re-let the property already.
In addition, if you have disposed of a tenant’s belongings in the process there is every chance that the tenant may also seek compensation for those increasing the loss to the Association.
As ever if you have any questions relating to use of this procedure please feel free to contact one of our experienced team members.