Two-acre commercial leases – can you recover possession without a court order?

If a tenant doesn't leave voluntarily at the end of a lease, a landlord must usually raise a court action for their eviction. Once granted, sheriff officers (Scottish Bailiffs) then have the power to remove the tenant, using force if necessary.

Must a landlord always follow the costly and time-consuming process of raising a court action to evict a squatting tenant after the lease has expired?

That depends on the circumstances of the lease and the form and timing of the notice given by the landlord.

Evictions without court orders

If the lease is of land exceeding two acres, has been signed and witnessed, has a start and end date and the landlord has either the principal lease or a registered extract of it, then section 34 of the Sheriff Courts (Scotland) Act 1907 (the "1907 Act") can be applied.

This allows landlords to serve a notice of removal on their tenants. If such a notice is served, an eviction can be carried out at the end of the lease without first obtaining a court order.

Instead, the landlord can hand the lease, along with authority in writing signed by the landlord or its agent, to a sheriff officer. A Charge for Removing is served by the sheriff officer, giving the former tenant 14 days to leave. If the former tenant doesn’t leave within the 14 days, the sheriff officer can then remove the former tenant (having first given 48 hours' notice of the date of removal – this notice is usually given at the same time as the charge for removing).

Time period for notice under the 1907 Act

The time period for serving notice under the 1907 Act varies depending on the length of the lease. If the lease is from year to year or is for any other period less than three years, at least 6 months' notice must be given. If the lease is for 3 years and upwards, at least 1 year's notice has to be given.

What if a landlord doesn’t want to serve notice under the 1907 Act?

A landlord may decide that they don't want to serve a notice 6 months or 1 year in advance of the expiry of the lease. There may be many sound commercial reasons for such a decision being made.

If a landlord doesn’t serve notice under the 1907 Act, it remains open for the landlord to serve a notice under the common law (unless the lease provides for any other period of notice). A common law notice only requires 40 clear days' notice. The court confirmed last year that it remains competent for a landlord to do so and that the 1907 Act isn't the only way a landlord can end a commercial lease when the property let exceeds 2 acres.

Key points for commercial landlords

• If you are a commercial landlord with a lease falling within the 1907 Act that you want to bring to an end, you should consider serving notice under the 1907 Act if time allows.

• Such a notice will mitigate the risk of a tenant refusing to leave at the expiry of their lease, as you may be able to remove the tenant without first obtaining a court order if that is required

• If you are beyond the deadlines for serving a notice under the 1907 Act, you can still serve a notice to quit at common law as long as 40 clear days' notice is given (or such other period as may be specified in the lease).

• A common law notice to quit will, however, require a court order to evict a tenant should they refuse to voluntarily remove after the lease has expired.