If a notice is not issued correctly or contains an error, the court or tribunal may refuse an eviction order, leading to additional cost and delay.
A recent decision of the Upper Tribunal for Scotland (UT), Brown v Lead 2026 UT 6, UT (SC), considered that very issue. The case concerned the validity of a notice to quit under a residential assured tenancy governed by the Housing (Scotland) Act 1988. Although assured tenancies are now largely historical (having been replaced by private residential tenancies since 1 December 2017), many remain in existence, and this case raises some important points about the variation of notice periods and the operation of tacit relocation. In simple terms, tacit relocation means that if neither the landlord nor the tenant takes proper steps to end the lease when it is due to expire, the lease can roll on automatically on the same terms for a further period. We explain what happened and what it means in practice for landlords.
The issues
The parties entered into an assured tenancy in October 2013 for a fixed term of six months and one day. Thereafter, the tenancy continued by tacit relocation on successive six-month periods.
In October 2023, the landlords sought to recover the property under Ground 1A of Schedule 5 of the 1988 Act, which was a temporary ground introduced during Covid-19 relating to a landlord suffering financial hardship (and has since been repealed). However, that ground would have only applied if the tenancy had become a statutory assured tenancy, which meant the original (contractual) tenancy must first have been properly brought to an end. To achieve this, the landlords served:
- a notice to quit, giving more than 40 days’ notice; and
- an AT6 notice of intention to raise proceedings.
- The tenant challenged the eviction, arguing that the notice to quit was invalid. The tenancy agreement included a clause providing that the landlord could terminate on not less than two months’ written notice, starting on a rent due date. The tenant argued that this clause replaced the common law 40-day notice period and that the notice to quit was therefore defective. The First-tier Tribunal (FTT) agreed, holding that tacit relocation continued and refusing possession.
- The questions for the UT to consider were:
- whether the tenancy agreement varied the notice period for the notice to quit from 40 days to two months; and
- whether the landlord’s notice to quit served on the tenant, and other surrounding circumstances, operated to exclude tacit relocation such that the contractual assured tenancy between the parties was terminated and the tenancy then became a statutory assured tenancy.
The UT’s decision
The UT allowed the appeal, quashed the FTT’s decision and held that:
- the notice to quit was valid;
- tacit relocation had ceased to operate; and
- the contractual tenancy had been terminated, creating a statutory assured tenancy.
The UT rejected the tenant’s argument that the contractual clause replaced the common law notice period. It held that the clause was properly construed as an optional break clause - a mechanism for ending the tenancy early, not for bringing it to an end at its natural expiry date (its ‘ish date’). The clause did not refer to the ish or purport to regulate termination at the ish. It therefore operated independently of the notice to quit mechanism. Accordingly, the default 40-day common law notice period applied, and the notice served by the landlords was valid.
The second element concerned the exclusion of tacit relocation. The UT drew heavily on the case of Rockford Trilogy Ltd v NCR Ltd 2022 SC 90, where the Inner House ruled that a commercial lease had been validly terminated by an informal email. The court took the view that formal notice to quit is not strictly required to terminate a lease if there is clear communication showing a lack of consent to continue on the previous terms. In that case, the tenant’s email had clearly shown that they did not agree to a silent continuation of the original lease and had successfully excluded tacit relocation.
The tenant argued that Rockford was not applicable to residential tenancies. It was suggested that informal notice to exclude tacit relocation was contrary to the legislative intent for leases of residential properties, given the requirement in section 112(1) of the Rent (Scotland) Act 1984 that a notice to quit in respect of such tenancies could only be given in writing.
The UT rejected this argument. It held that the formality for writing under the 1984 Act only applied to the manner in which a residential tenancy was terminated at its ish date. It did not deal with the separate principle of how a lease might be renewed by tacit relocation. The Upper Tribunal held that the notice to quit was valid, served on the correct notice period and was effectual to terminate the tenancy at its ish date.
Even if the notice period had been varied by the terms of the tenancy, the UT held that the facts and circumstances of the case were such as to exclude tacit relocation in any event. The landlords’ actions in serving the notice to quit on the tenant and applying for an order for repossession clearly showed the lack of consent to continue the tenancy, as had been shown in Rockford.
In both scenarios, the contractual tenancy had been brought to an end and a statutory assured tenancy was created. The UT allowed the appeal and directed that the FTT find in fact and law that tacit relocation had ceased to operate.
Takeaways for landlords
This decision will be of some relief to landlords who operate older assured and short assured tenancies. It underscores a pragmatic and commercially sensible approach to lease termination. While getting the formalities right remains crucial, courts will ultimately look at substance over form when excluding tacit relocation. A landlord who clearly and consistently demonstrates an intention to recover possession is far less likely to be defeated by technical arguments over notice.
Although no new assured tenancies can be created, existing ones remain subject to complex statutory and common law rules. If you are a landlord looking for advice on recovering possession, our expert team would be pleased to assist.
