A sitting tenant may not prevent you from selling your property in Scotland. Still, the law surrounding Private Residential Tenancies imposes several restrictions on what you can do before and during the sale. The rules governing sitting tenants are directly relevant to Scottish landlords considering how to exit their tenanted property, especially when property owners are looking to sell to buyers such as Cash For Property Scotland.
The private residential tenancy and what it changed
The Private Residential Tenancy was introduced in Scotland in December 2017, and it ended the landlords’ right to evict at the end of a fixed term just because the tenancy had expired. Tenants under this regime will have an open-ended tenancy. They can only be terminated on specific statutory grounds, with no defined notice requirements and, in some cases, a mandatory First-tier Tribunal process. One of the grounds for repossession is the sale of the property, but there are conditions to the sale that many landlords aren’t aware of.
Using sale as a ground for repossession
The Private Residential Tenancy framework provides for a landlord to seek the return of the property if they wish to sell it (Ground 9). The landlord has to rely on this, giving the tenant a valid Notice to Leave that sets out the grounds, after the required notice period, and then applying to the First-tier Tribunal for a repossession order if the tenant fails to vacate the property voluntarily. The Tribunal will consider the landlord’s intentions to sell and whether it is reasonable to grant the order, in all the circumstances. It’s a process that takes some time and has no guarantee of when it’ll be done.
What notice period applies
The notice period for the sale of the ground varies with the length of the tenancy. Two months’ notice is required for tenancies of less than 6 months. Tenats of 6 months to 1 year should be given 84 days. Tenancies lasting for over one year must be terminated with at least 84 days’ notice. These periods are not for any period during which the landlord wants to sell the property, but rather from the date of the notice.
The tenant’s rights during the process
If a tenant receives a Notice to Leave, they are not required to move out before the end of the notice period and cannot be evicted before they get a Tribunal order to do so if they want to challenge the Notice. During this time, the tenancy remains in force on the same terms. The landlord is still responsible for keeping the property in good repair and making any necessary repairs, and is subject to all other landlord responsibilities under Scottish law. If a tenant chooses to leave before the end of the notice period, it is their own choice, and they cannot be compelled to do so.
Selling with the tenant in place
One option to repossess a property before sale is to sell the property with the tenant in occupation. This is a valid way forward without the uncertainty of the Tribunal process, and it can be completed in a shorter time frame. The number of people willing to buy a tenanted property in Scotland is lower than on the open market: residential buyers generally want vacant possession, and many mainstream mortgage lenders will not lend against a tenanted property. Tenanted sales are mainly for cash buyers and property investors, and the price achieved will depend on the asset’s tenancy.
What landlords should consider before acting
Scottish landlords should ensure that their tenancy agreement and registration as a landlord are up to date; that the proposed ground for repossession is appropriate to their situation; and that the period suggested by the statutory process is suitable for a landlord’s intended sale date. Getting expert advice before giving notice will prevent procedural mistakes that may render it invalid and require it to be done over again.
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