Introduction:
The Private Housing (Tenancies) (Scotland) Act 2016 introduced a new concept to the private rented sector in Scotland known as Wrongful Termination Orders (WTO). This provision aims to address the misuse of grounds for possession by landlords, allowing tenants to seek a WTO as a penalty against landlords. While tenants have had the ability to seek WTOs since December 1st, 2017, there have been few cases until recently. Tenants are becoming more aware of their rights and are increasingly utilizing this option, potentially due to the COVID-19 pandemic and the changes in notice periods for certain grounds.
When Can Wrongful Termination Orders Be Made? The authority for issuing a WTO is outlined in sections 57(3) and 58(3) of the 2016 Act. It applies when the tribunal is misled into issuing an eviction order or when a tenant is misled into vacating a property after receiving a Notice to Leave from the landlord. An example of this is when a landlord serves a Notice to Leave stating the intention to sell the property but then promptly advertises it for rent after the tenant vacates.
Can a Landlord Change Their Mind after Issuing a Notice to Leave? In short, yes, a landlord can change their mind due to changing circumstances. The tribunal considers the landlord's intentions at the time the Notice to Leave was served. In a recent case, a WTO application was made where the landlord issued a Notice to Leave, claiming the intention to sell the property. The ten Introduction: The Private Housing (Tenancies) (Scotland) Act 2016 introduced a new concept to the private rented sector in Scotland known as Wrongful Termination Orders (WTO), in accordance with Section 57(3) and 58(3) of the Act. This provision aims to address the misuse of grounds for possession by landlords, allowing tenants to seek a WTO as a penalty against landlords. While tenants have had the ability to seek WTOs since December 1st, 2017, there have been few cases until recently. Tenants are becoming more aware of their rights and are increasingly utilizing this option, potentially due to the COVID-19 pandemic and the changes in notice periods for certain grounds.
When Can Wrongful Termination Orders Be Made? Under the Private Housing (Tenancies) (Scotland) Act 2016, tenants can seek a WTO when the tribunal is misled into issuing an eviction order or when a tenant is misled into vacating a property after receiving a Notice to Leave from the landlord. This is outlined in Section 57(3) and 58(3) of the Act. An example of this is when a landlord serves a Notice to Leave stating the intention to sell the property but then promptly advertises it for rent after the tenant vacates.
Can a Landlord Change Their Mind after Issuing a Notice to Leave? In short, yes, a landlord can change their mind due to changing circumstances. Section 58(3) of the Private Housing (Tenancies) (Scotland) Act 2016 requires the tribunal to consider the landlord's intentions at the time the Notice to Leave was served. In a recent case, a WTO application was made where the landlord issued a Notice to Leave, claiming the intention to sell the property. The tenants vacated in December 2022, but the property was marketed for rent by January 2023. The tribunal acknowledged that the stated intention of the landlord to sell was undisputed, and the tenant concern was the inconvenience caused to them, seeking protection from such situations.
However, the tribunal concluded that the key condition for granting an order is that the former tenant must have been misled by trickery or deception, surrendering their rights to the property. This is in accordance with the Private Housing (Tenancies) (Scotland) Act 2016. The fact that the landlord circumstances changed shortly after the Notice to Leave did not invalidate the legitimacy of their initial intentions.
It is important to note that claiming a change of heart alone may not allow a landlord to avoid a WTO. If such a claim is made and not accepted by the former tenants, the tribunal will scrutinize the landlord reasons and actions, including when the circumstances changed, to assess the credibility of the claim.
What Should a Landlord Do When Circumstances Change? The appropriate course of action will depend on the ground for possession being used, as outlined in the Private Housing (Tenancies) (Scotland) Act 2016. In the case of the most common ground, selling the property, if the tenants have not yet vacated or been evicted when the circumstances change, it is advisable to promptly notify the tenants and offer to continue the tenancy. If the tenants have already secured alternative accommodation by that time, it does not guarantee the absence of a WTO claim, but it may demonstrate good faith on the part of the landlord. Additionally, landlords should maintain comprehensive records to explain any change in circumstances, such as retaining contracts with estate agents, home reports, particulars, records of viewings, and any offers made and rejected (along with reasons for rejection). Such documentation may prove useful if a WTO claim is raised.
Conclusion: The introduction of Wrongful Termination Orders under the Private Housing (Tenancies) (Scotland) Act 2016 has empowered tenants to challenge the misuse of grounds for possession by landlords. Landlords should be aware of the implications and act in accordance with the relevant Scottish legislation when issuing Notices to Leave or when circumstances change.
communication with tenants and maintaining comprehensive records can help landlords navigate potential WTO claims within the framework of the Private Housing (Tenancies) (Scotland) Act 2016. ants vacated in December 2022, but the property was marketed for rent by January 2023. The tribunal acknowledged that the stated intention of the landlord to sell was undisputed, and the
tenants concern was the inconvenience caused to them, seeking protection from such situations. However, the tribunal concluded that the key condition for granting an order is that the former tenant must have been misled by trickery or deception, surrendering their rights to the property. The fact that the landlord's circumstances changed shortly after the Notice to Leave did not invalidate the legitimacy of their initial intentions.
It is important to note that claiming a change of heart alone may not allow a landlord to avoid a WTO. If such a claim is made and not accepted by the former tenants, the tribunal will scrutinize the landlord reasons and actions, including when the circumstances changed, to assess the credibility of the claim.
What Should a Landlord Do When Circumstances Change? The appropriate course of action will depend on the ground for possession being used. In the case of the most common ground, selling the property, if the tenants have not yet vacated or been evicted when the circumstances change, it is advisable to promptly notify the tenants and offer to continue the tenancy. If the tenants have already secured alternative accommodation by that time, it does not guarantee the absence of a WTO claim, but it may demonstrate good faith on the part of the landlord. Additionally, landlords should maintain comprehensive records to explain any change in circumstances, such as retaining
contracts with estate agents, home reports, particulars, records of viewings, and any offers made