What happens when a commercial lease in Scotland comes to an end but the tenant remains in occupation?
Unfortunately for landlords, it is not simply a case of changing the locks. Save for certain circumstances where the leased property exceeds two acres (see our blog on this here), landlords must obtain a court order and follow a statutory process to evict a tenant who refuses to leave voluntarily after the lease has ended. Here are five steps that need to be followed to lawfully remove a tenant:
1. Make sure the lease is definitely at an end. In Scotland, a lease does not automatically terminate at its expiry date. Where the parties remain silent, the law presumes that the parties have agreed to prolong the lease on the same terms for a further year (or, if the original lease was for less than one year, for that shorter period). This is known as tacit relocation. To avoid it, the landlord should send a clear and explicit written notice to quit at least 40 clear days before the end date of the lease. You can read our blog on tacit relocation here.
2. Raise an action for removing. If notice to quit has been served timeously, the lease has come to an end and the tenant remains in occupation, the landlord should raise a court action for removing. The action should normally be raised in the sheriff court local to the premises. As well as seeking the removal of the tenant, the action can include a claim for 'violent profits' (a form of penal damages) or damages for any losses suffered by the landlord as a result of the tenant's failure to vacate on time (such as rent which would have been received from a new tenant).
3. Serve a Charge for Removing. Once a court order for removal has been obtained, sheriff officers should be instructed to serve a Charge for Removing, giving the tenant 14 days to leave the premises. The period of the Charge can be reduced or dispensed with if the circumstances justify it.
4. Serve notice of the date of removal. Before an eviction can proceed, sheriff officers must give the tenant at least 48 hours' notice of the date of removal. This notice can either be given at the same time as the Charge for Removing or nearer the date of eviction. The notice period can also be reduced or dispensed with if the circumstances justify it.
5. Evict the tenant. If the steps above are followed, sheriff officers can be instructed to attend the premises and remove the tenant. It is a good idea to arrange for the locks to be changed immediately to prevent the tenant from retaking occupation. If there is stock, equipment or other belongings left in the premises then the tenant should be offered an opportunity to arrange for these to be uplifted. Otherwise, the landlord can get on with re-letting the property or using it for whatever other purpose it wishes.
If you are a commercial landlord in the situation described above then we can help you navigate this process – get in touch with our Real Estate Disputes team or your usual Brodies contact.
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