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In England this didn’t previously exist until being introduced under s21 of Thatcher’s capstone legislation the Housing Act 1988. This applies to England and Wales until it was superseded in the latter by the renting homes wales act.

In Scotland and Northern Ireland it no longer exists, but did it in the past? And in England, before it was introduced under the Housing Act 1988, did it ever previously exist before that?

And in other jurisdictions where it does not currently exist, did it previously at some past point? (If so, when?)

Mostly interested in Scottish & NI positions, and then English (pre- pre- 1988), and then any other jurisdictions where no fault evictions are not currently available.

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  • Could you clarify more what you mean by "no fault eviction"?
    – ohwilleke
    Jan 15 at 1:44
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    Idk. When you speak of a lease here you are typically referring to an even more entrenched interest in the land than that of a tenant, so for avoidance of confusion I will insist on the term tenancy. (Also, in leases if I’m not mistaken one would typically sooner speak of forfeitures than of evictions.) furthermore, as leases are often definitely time bounded (in theory, if not typically in practice), rather than rolling/periodic, it makes more sense I suppose in that context than in the context of tenancies to discuss breaching them. My perspective is that in England you would not speak of Jan 16 at 17:43
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    Ever having a “right” to “breach” anything either. In England NFE takes the form of the section 21 possession procedure which the landlord is entitled to invoke at will, though subject to certain conditions. One condition is that the tenant is not currently in the midst of any contractually agreed definite term (such as 6 months or 1 year). If a landlord has let a property for such a fixed term, then they have no right to end the tenancy or otherwise expel the tenant, if they have been keeping up their end of the bargain by being a good tenant and paying rent. Once any fixed term has ended, Jan 16 at 17:47
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    the tenancy is replaced by a statutory periodic tenancy that continues indefinitely from period-to-period (typically monthly). During this period, subject to other conditions, the landlord can initiate a section 21 possession procedure at will, without the tenant first having done anything wrong against their lease. One of the other conditions is that the earliest of any contiguous/consecutive tenancies of that tenant in that property began more than 4 months ago. Combined with a two month notice period, this means that a section 21 procedure cannot ask that one leave a place that they have Jan 16 at 17:51
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    Taken up occupation in less than six months ago. The other main conditions are that the procedure will not be successful if the landlord has not complied with all of the prescribed requirements. These include service of certain statutorily required materials on the tenant prior to or simultaneously with their service of the section 21 notice-seeking-possession. Jan 16 at 17:53

3 Answers 3

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This question is a bit subtle because there is an interplay between what structures were legally possible, and what was practically available. At all times there has been some notion of security of tenancy, hence the term "tenant" as literally somebody able to hold on, in contrast to other kinds of occupiers of land. But the shape of historical practice has limited the degree to which people had access to that security.

A considerable barrier for a large part of Scottish history was that a powerful proprietor (landowner) could pretty much do what they wanted, with respect to regular people farming the land. The Earl of Somewhere would have title to all the land in sight, much more money than you, and easy access to burly men with weapons. If you went to the sheriff you'd find that he was the Earl's nephew anyway.

Since 1449, somebody with a lease was entitled to remain in possession of that land for the duration. ("The takaris sall remayn with thare takis on to the ische of thare termes", Leases Act 1449.) In a legal action for removal of a tenant, they could "plead the lease", but only if such lease actually existed with the date of ish in the future. Removal was still possible if the tenant had broken express terms of the lease, or caused an "irritancy" such as keeping buildings in disrepair. However, most people did not have robust agreements of this kind, and probably had no written agreement at all.

The social structure generally emerging was that the Earl of Somewhere would parcel his lands out to "tacksmen" on long leases, typically friends and relations. A tacksman had delegated authority to manage the land, including to "input and output tenants", meaning among other things that he could pursue the legal process of eviction in the proprietor's name. (After 1555's "Act anent Warning of Tenants", there was a standard statutory process to follow.) Tenants' leases would often be for short periods, precisely so that they could be moved on if the tacksman desired. Some people were fortunate enough to obtain a life tenancy (still potentially a problem for the next generation) but others had less bargaining power and relied on a succession of short-term agreements. The cycles of the agricultural year led to allowing evictions only at the end of winter, so that the incoming tenant would be in place for the planting season.

Thus, zooming forwards to the Highland Clearances of the 19th century, the situation on the ground was that crofters would farm land under an annually-renewed lease, and could easily be evicted if it were not renewed. It was harder to evict them during the year, but that was a less desirable course of action anyway. As it became more lucrative for proprietors to consolidate their holdings into larger units, and change land use from arable farming to other purposes, it was legally straightforward for them to pursue mass evictions as the lease terms expired - to the surprise and consternation of families who'd been occupying the same homes for generations without legal incident. It took a statutory action (the Crofters Holdings Act 1886) to realign the law such that removals were only possible on certain grounds, such as nonpayment of rent, and tenants could otherwise carry on in their tenancy.

Similar evolution took place for agricultural landholdings outside the Highlands, and for tenants in urban areas, although the legal specifics are different. And all of these changes have themselves been largely superseded by the modern statutory creation of various different forms of standard tenancy.

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It still exists

For example, the Ellis Act in California allows landlords to exit the rental business and evict their teanants.

More generally, tenancy-at-will is allowed in many jurisdictions, including England and Wales.

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Eigenbedarfskündigung

A landlord who wants to move into the living unit rented out to someone can evict the tenant after serving an Eigenbedarfskündigung, which is much easier to achieve than getting a tenancy to end without a lack of rent payments.

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