Proceeding in terms of Section 33 of the Housing (Scotland) Act 1988
27th Oct 2010

Proceeding in terms of Section 33 of the Housing (Scotland) Act 1988

In terms of Section 33 the Court must make an order for repossession if it is satisfied that (1) the short assured tenancy has reached its ish date without tacit relocation operating, (2) that no further contractual tenancy (short assured or not) is in existence and (3) that the landlord has given the tenant notice that “he requires possession of the house” (Second 33(1)(d)). The period of notice is two months unless the terms of the tenancy provide for a longer period.

In terms of Section 33 the Court must make an order for repossession if it is satisfied that (1) the short assured tenancy has reached its ish date without tacit relocation operating, (2) that no further contractual tenancy (short assured or not) is in existence and (3) that the landlord has given the tenant notice that “he requires possession of the house” (Second 33(1)(d)). The period of notice is two months unless the terms of the tenancy provide for a longer period. Section 33 operates without prejudice to any right of the landlord to recover possession in accordance with the Grounds listed in Schedule 5.

If utilising Section 33 you must serve (1) a formal Notice to Quit, (2) Form AT6 stipulating that you are relying on Section 33 and giving notice that the landlord “requires possession” and (3) a “Section 33 Notice” which also gives the tenant notice that the landlord “requires possession”. There are conflicting views on whether Form AT6 is required but it is recommended you use it in order to avoid any potential problems.

It is important to note that the date in the Notice to Quit may not coincide with the dates in the other 2 Notices.

Notice to Quit

A Notice to Quit is the Notice which brings the tenancy agreement to an end at its ish date. It is vital that the Notice to Quit specifies the date the tenancy is to terminate (the ish date). For example, if you have a short assured tenancy from 1 January to 1 July and it continues thereafter by tacit relocation, the ish date is either 1 July or 1 January. This is the date that must be specified in the Notice to Quit. In addition, the following points apply:-

  • The Notice to Quit must contain the statutory prescribed information otherwise it is invalid.
  • The Notice must be served by recorded delivery post or Sheriff Officers.
  • Serving a valid Notice to Quit does not in itself mean that a tenant has to leave your property. It only brings the contractual tenancy to an end and creates a statutory Short Assured tenancy thereafter. As stated above, in terms of Section 33, the Court has to be satisfied that the tenancy has reached its ish date and no further contractual tenancy is in existence and a valid Notice to Quit achieves this purpose. An invalid Notice to Quit does not!
  • Serving a Notice to Quit alone does NOT mean a tenant has to leave your property.

What to include

If you serve a Notice to Quit to your tenant it must include the following information:

  • The tenant’s full name
  • The full address of the property
  • The date the tenancy ends (ie the ish date) – this is the date the tenant is called to remove upon
  • Your signature
  • The date you signed the notice

A Notice to Quit must also include the following three statements:

  • Even after the Notice to Quit has run out, before the tenant can lawfully be evicted, the landlord must get an order for possession from the court.
  • If a landlord issues a Notice to Quit but does not seek to gain possession of the house in question, the contractual assured tenancy which has been terminated will be replaced by a Statutory Assured Tenancy. In such circumstances, the landlord may propose new terms for the tenancy and may seek an adjustment in rent at annual intervals thereafter.
  • If a tenant does not know what kind of tenancy he/she has, or is otherwise unsure of their rights, they can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid Legislation. A tenant can also seek help from a Citizens Advice Bureau, or Housing Advisory Centre.

Notice period

This depends on the type of tenancy agreement your tenant has and the length of the agreement.

To end an assured tenancy at its end or ish date you must give the following minimum amounts of notice;

  • 28 clear days (excluding the date of service and the ish date) if the tenancy agreement is up to 1 month
  • 40 clear days (excluding the date of service and the ish date) if the tenancy agreement is for more than 3 months

If the tenancy agreement provides for a longer period this must be given. It is advisable to serve the other forms (i.e. Section 33 Notice and AT6 form) at the same time and you should be aware that the notice period for such notices can be up to two months.

You can increase the minimum amount of notice which must be given by you or by your tenant if you write this in the tenancy agreement.

You can agree to the tenant giving you a shorter amount of notice.

You cannot give your tenant less notice than the amounts listed above.

The period of notice in the Notice to Quit must relate to the end or ish date of the tenancy agreement.

You should take into account the length of time it will take for the notice to be delivered. The date of the Notice and the date specified in it are normally left out of account in calculating the notice period given.

A Notice to Quit will be invalid if:

  • You don’t include all the information listed above
  • You don’t give the correct amount of notice
  • You don’t serve the notice by recorded delivery or by Sheriff Officers

If a Notice to Quit is invalid, you will need to serve another valid Notice to Quit. This must include the required information and give the correct amount of notice.

If you don’t have enough time to serve a valid Notice to Quit, the tenancy agreement will automatically renew itself with the same terms and conditions as before – unless both landlord and tenant agree different terms or conditions – because of automatic renewal (tacit relocation). You will be unable to end the tenancy until the next end date. Depending on what your tenancy agreement says, this could be another month, six months or even a year.

Section 33 notice

Section 33 of the Housing (Scotland) Act 1988 sets out a specific procedure which will enable recovery of possession of a property which has been let under a Short Assured Tenancy. A special notice is required in terms of this section telling your tenant that you wish to recover possession. The minimum period of notice you must give on a Section 33 notice is two months. You must state you require possession.

Notice of Intention to Raise Proceedings (AT6)

A Notice of Intention to Raise Proceedings is a legal document and is also known as an AT6. You must serve your tenant with an AT6 before you can take legal action to get your property back if your tenant doesn’t leave at the end of the Notice to Quit. A copy of an AT6 can be downloaded from the NLA website. When utilising Section 33 you must give 2 months notice and state you require possession in terms of Section 33.

Essential information on an AT6

You must include:

  • A statement that you require possession if using Section 33 and if not using Section 33 the full ground(s) listed in the Housing (Scotland) Act 1988 that you want to use to get your property back. You can list as many grounds as may apply.
  • The reasons why you are using these grounds.