The First-tier Tribunal recently considered the date to be stated in a notice to leave on or after which the landlord can expect to make an application to the Tribunal for eviction.
By way of background, where a landlord wishes to recover possession of a Private Residential Tenancy, the landlord must serve a notice to leave. The legislation sets out various requirements for the notice to leave. One of the requirements is that the notice to leave states a date on or after which the landlord can expect to be make an application to the Tribunal for eviction.
The date to be specified in the notice to leave 'is the day falling after the day on which the notice period will expire.' The notice period is 28 or 84 days depending on which eviction ground is relied upon. For the purpose of determining the date to be specified, section 62(5) of the legislation provides 'it is to be assumed that the tenant will receive the notice to leave 48 hours after it is sent.'
This means the notice to leave has to factor in this 48 hour window for receipt of the notice by the tenant.
In the case of Talon Alba Ltd -v- Lane the landlord had served a notice to leave dated 13 August 2019. The date specified in the notice to leave was 13 September 2019. The notice to leave was sent by recorded delivery on 13 August 2019 but the tenant did not sign for the notice to leave until 17 August 2019. The Tribunal considered whether or not it could ignore the actual evidence of the receipt of the notice to leave on 17 August 2019 and apply the deeming provision in section 62(5) of the 2016 Act.
We successfully argued that the purpose of the assumption was to create an artificial date of receipt of a notice to leave for a tenant. The Tribunal agreed and disregarded the evidence so as to give effect to the hypothetical situation as stated in the legislation.
This provision recognises the practical reality that a landlord can never anticipate the actual date of receipt of a notice to leave by a tenant unless delivered personally.
It is worthwhile highlighting that the Scottish Government Guidance Notes for notice to leave for landlords contradicts the above decision and, in our view, is incorrect.
Landlords and letting agents should exercise caution when preparing notices to leave. If you wish to discuss any issues that you may be experiencing, please contact a member of our Private Rented Sector team.