Discretionary Grounds for Eviction Scotland: What Changed and Why It Matters

When the Private Housing (Tenancies) (Scotland) Act 2016 came into force, it divided the 18 eviction grounds into two categories: mandatory grounds, where the Tribunal had to grant an eviction order if the facts were proved, and discretionary grounds, where the Tribunal could decide it was not reasonable to evict even if the facts were established.

That distinction no longer exists. The Coronavirus (Recovery and Reform) (Scotland) Act 2022 permanently converted every mandatory ground into a discretionary ground. Since that change took effect, every eviction application that reaches the First-tier Tribunal goes through a reasonableness assessment, no matter which ground the landlord relies on.

What "Discretionary" Actually Means

Proving the factual basis of your eviction ground — that you genuinely intend to sell (Ground 1), or that the tenant owes three months of rent (Ground 12) — is still necessary. But it is now only the threshold. Once you clear it, the Tribunal must separately decide under Section 51 of the 2016 Act whether granting an eviction order is "reasonable in the circumstances."

The reasonableness test weighs the landlord's reasons for wanting possession against the tenant's circumstances. Factors the Tribunal considers include:

• The strength and genuineness of the landlord's stated reason
• The tenant's personal circumstances — health, family, financial situation
• Whether school-aged children or vulnerable household members would be affected
• The availability of alternative housing for the tenant
• The landlord's own compliance record — landlord registration, deposit protection, repairing standard, safety certificates

A landlord with a genuine need to sell but a poor compliance history may find the Tribunal less sympathetic. A tenant who is elderly, has dependent children, or has nowhere else to go will weigh more heavily on the balance.

How This Changed the Landscape

Under the old mandatory grounds, a landlord who proved the facts got the eviction order — the Tribunal had no discretion to refuse. Ground 1 (selling) and Ground 4 (landlord moving back in) were both mandatory: prove the intention, get the order.

Now the Tribunal can refuse even a well-evidenced Ground 1 application if eviction would be unreasonable in the circumstances. In practice, this means:

Stronger evidence packages matter more. A bare assertion of intent to sell is not enough. Providing a signed estate agent mandate, a Home Report, and a solicitor engagement letter makes the case substantially harder for the Tribunal to question.

Compliance history is scrutinised. A landlord who has not registered, has not protected the deposit, or has outstanding repair complaints will face questions about whether someone who has not met their existing legal duties deserves the Tribunal's help in recovering the property.

Tenant vulnerability can delay or defeat an application. If the tenant presents evidence of health conditions, disability, caring responsibilities, or imminent homelessness, the Tribunal will weigh that heavily. This does not mean vulnerable tenants can never be evicted — it means the landlord needs compelling reasons and cannot expect an automatic order.

Wrongful Termination Orders

The discretionary framework is backed by a penalty mechanism. Under Section 57 of the 2016 Act, a tenant who leaves after being misled by the landlord can apply for a Wrongful Termination Order. Since 6 October 2026, the Tribunal can order compensation of three to 36 times the monthly rent. If the rent is below £840 per month, the Tribunal uses £840 as the monthly figure when calculating compensation. For example, a landlord who claims Ground 1 (sale) and then re-lets the property may face this order.

This mechanism existed before the 2022 changes, but the maximum payment has since increased. Discretionary assessment means the Tribunal is already looking closely at the genuineness of the landlord's stated intention. A landlord who fails to follow through on that stated intention is exposed.

What This Means for Serving Notice

The notice to leave itself has not changed — you still select the ground, serve the prescribed form, and wait out the notice period. What has changed is what happens at the Tribunal. Every ground now requires preparation not just for the facts but for the reasonableness argument. This means documenting your compliance, anticipating what the tenant will raise, and being able to explain why eviction is fair in the circumstances.

Our Notice to Leave in Scotland guide covers each ground's evidence requirements alongside the reasonableness factors the Tribunal weighs, so your application addresses both tests.

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