1st April 2020

Coronavirus (Scotland) Bill: a (temporary) re-write of the law on residential evictions

The emergency Coronavirus (Scotland) Bill (‘the Bill’), was published on Tuesday 31 March 2020 and is expected to pass in full on Wednesday 1 April 2020. Subject to Parliament’s approval, the Bill is likely to come into force during the week commencing Monday 6 April 2020. The Bill is designed to work alongside the Coronavirus Act 2020, passed by the UK Parliament on 25 March 2020, and which the Scottish Parliament gave its consent to on 24 March 2020. The Bill focuses on three headline areas, being:

  • adjustments to the justice system, including criminal procedures to ensure essential justice business continues;
  • a range of provisions designed to ensure businesses, consumers and public services continue to operate effectively; and,
  • adjustments to the law on evictions to protect those renting their homes in the private and social sector.

The focus of this article is the impact of the Bill upon private sector residential tenancies.

Private Residential Tenancies

Since the 1st December 2017, as a result of the Private Housing (Tenancies) (Scotland) Act 2016 (‘the 2016 Act’), any new residential tenancy granted in favour of an individual in respect of a separate dwelling was a Private Residential Tenancy (‘PRT’). In respect of a PRT, the 2016 Act sets out, among other things, the periods of notice which first required to be given to a tenant before the landlord can make an application to the First-tier Tribunal for Scotland (Housing and Property Chamber) (‘the Tribunal’) for an eviction order and the grounds upon which such an order could be sought.

Extension of Notice Periods – PRT

The period of notice which a landlord needs to give their tenant in relation to a PRT depends on how long the tenant has lived in the property. If it’s 6 months or less, the landlord needs to give 28 days’ notice. If it’s more than 6 months, the landlord needs to give 84 days’ notice. Should the tenant fail to vacate the let property by the end of the notice period, the landlord can then make an application to the Tribunal for an eviction order.

Provided the Bill becomes law, which is expected, the respective 28 and 84 day notice periods will, for the time being, be replaced with notice periods of 28 days, 3 months and 6 months, depending on which ground an order for eviction is sought.

A notice period of 28 days applies if the only eviction ground stated in the notice to leave is that the tenant is not occupying the let property as their home.

A notice period of 3 months applies if the only eviction ground, or grounds, stated in the notice to leave is, or are, one or more of the following:

  • that the landlord intends to live in the let property;
  • that a member of the landlord’s family intends to live in the let property;
  • that the tenant has a relevant conviction;
  • that the tenant has engaged in relevant anti-social behaviour;
  • that the tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour;
  • that the landlord is not registered by the relevant local authority under the Antisocial Behaviour etc. (Scotland) Act 2004; or,
  • that the let property or associated living accommodation is in multiple occupation and not licensed under Part 5 of the Housing (Scotland) Act 2006.

A notice period of 6 months applies to all other grounds for eviction, being:

  • that the landlord intends to sell the let property;
  • that the let property requires to be sold by a lender;
  • that the landlord intends to refurbish the let property;
  • that the landlord intends to use the let property for non-residential purpose;
  • that the let property is required for religious purpose;
  • that the tenancy was entered into to provide an employee with a home and the tenant is not a qualifying employee;
  • that the tenancy was entered into on account of the tenant having an assessed need for community care and the tenant has since been assessed as no longer having that need;
  • that the tenant has breached the tenancy agreement;
  • that the tenant is in rent arrears; or,
  • an overcrowding statutory notice has been served.

Removal of mandatory grounds for an eviction order – PRT

Prior to the Bill, once the relevant period of notice had lapsed, had the tenant failed to remove, so long as the ground for eviction stated in the notice to leave was a ground which, if established, the Tribunal must grant an eviction order i.e. a mandatory ground, obtaining an order for eviction was, in most instances, a formality. However, what the Bill does is replace all of the mandatory grounds in which the Tribunal must grant an order for eviction with discretionary grounds; once the Bill come into law, the Tribunal will only grant the eviction order if it “is satisfied that it is reasonable to issue an eviction order”.

Prior to the Bill, the mandatory eviction grounds in respect of a PRT were:

  • that the landlord intends to sell the let property;
  • that the let property requires to be sold by a lender;
  • that the landlord requires to refurbish the let property;
  • that the landlord requires to live in the let property;
  • that the landlord intends to use the let property for non-residential purpose;
  • that the let property is required for religious purpose;
  • that the tenancy was entered into to provide an employee with a home and the tenant is not a qualifying employee;
  • that the tenant is not occupying the let property;
  • that the tenant has been in rent arrears for three or more consecutive months (and an amount equal to at least one month’s rent is outstanding at the time in which the Tribunal first considers the application); or
  • that the tenant has a relevant conviction.

Assured tenancies

The Bill not only introduces changes to PRTs, but also to assured tenancies (including short assured tenancies) under the Housing (Scotland) Act 1988 (‘the 1998 Act’). Although all new post-December 2017 tenancies are PRTs, there are still in existence a considerable number of legacy assured tenancies.   Similar changes in respect of increased periods of notice and the removal of mandatory grounds for possession in respect of tenancies under the 1988 Act have been introduced also.

Extension of Notice Period – assured tenancy / short assured tenancy

Before a landlord in an assured tenancy (‘AT’) can apply to the Tribunal for an order for possession of the let property, in terms of section 19 of the 1988 Act, the landlord must first serve a Form AT6 on the tenant which stated the grounds upon which possession is being sought (with the relevant grounds being set out in Schedule 5 to the 1998). The period of notice was, depending on the ground upon which possession was sought, either 2 weeks or 2 months. The Bill replaces those notice periods with 2 months, 3 months or, as the case may be, 6 months, depending on the ground in which an order for possession is sought. A minimum period of 2 months’ notice need be given if the ground for recovery is that suitable alternative accommodation is available for the tenant or will be available for them when the order for possession takes effect (Ground 9). A minimum of 3 months’ notice is required where either the landlord has previously lived in the let property and requires it back (Ground1) or the tenant has been convicted of a relevant offence (Ground 15). A minimum period of 6 months’ notice must be given in respect of all other grounds, which are:

  • Grounds 2 to 8;
  • Grounds 10 to 14; and,
  • Grounds 16 or 17.

Of the above Grounds, the most notable is Ground 8 which provides that, so long as at both the date of the service of the Form AT6 and at the date of the date of the case management discussion before the Tribunal, at least three months’ rent lawfully due from the tenant is in arrears, an order for possession must be granted.

While a landlord in a short-assured tenancy (‘SAT’) is also entitled to issue a form AT6 under section 19 of the 1988 Act and, thereafter, if necessary, seek an order for possession, more often than not, they would, in order to recover possession of the let property, look to avail themselves of the no-fault ground for recovery provided by section 33 of the 1988 Act. By way of section 33 of the 1988 Act, a landlord can seek to recover possession of the let property on the basis that the SAT has reached its finish (and that tacit relocation is not operating and that the landlord has given to the tenant notice stating that they require possession of the let property).   Unless the SAT provides otherwise, the period of notice for the purpose of section 33 is 2 months. By way of the Bill, that period of notice is to be increased to 6 months

Removal of mandatory grounds for possession – assured tenancy/ short assured tenancy

Part 1 of Schedule 5 to the 1988 act set out 8 grounds which, if established, the Tribunal must grant an order for possession (so long as the requirements in relation to the service of a Form AT6 have been met). The Bill provides that all eviction grounds contained in part 1 Schedule 5 to the 1998 Act are to now be discretionary; the Tribunal will therefore only grant an order for possession where Grounds 1 through 8 are met if it is reasonable in all the circumstances to do so.

Furthermore, whereas recovery of possession of a property let on a SAT was mandatory where the conditions set out in section 33 of the 1988 Act had been met, that too has been changed from a mandatory ground to a discretionary one; again, an order for possession will only be granted in this regard if the Tribunal is of the view that it is reasonable in all the circumstances to do so.

Rent (Scotland) Act 1984

The Rent (Scotland) Act 1984 (‘the 1984 Act’) created a form of tenancy known as a protected tenancy. Following the introduction of the 1988 Act, there were no new protected tenancies and as such, very few such tenancies are in existence today. Nonetheless, the Bill does amend the 1984 Act so as to introduce increased periods of notice in respect of such tenancies also.

Scottish secure tenancies

While the focus of this article is residential tenancies in the private sector, is should be noted that the Bill also seeks to introduce increased periods of notice in respect of social tenancies granted by either a local authority, a housing association or a housing co-operative under the Housing (Scotland) Act 2001.

Errors in Notices

Where a notice issued under either the 2016 Act, the 1988 Act or the 1984 Act fails to take account of the changes proposed by the Bill, such error does not invalidate the notice, rather it may simply not be relied upon by the landlord for the purpose of seeking an order of the Tribunal until the date on which it could have been relied had it been correctly completed.

Tribunal closure

While the Bill represents a significant departure from the law as we know it, at a practical level, there will be, in the short term anyway, no real change from a landlord’s point of view in that, as from 25 March 2020, the Glasgow Tribunal Centre, which is the administrative base for the Tribunal, closed to administrative staff with only a limited number of staff remaining so as to deal with any urgent or time critical applications. At present, non-urgent/ time critical applications will not be processed until the Glasgow Tribunal Centre has re-opened to all of its staff.

While, practically speaking, the prospect of a tenant being evicted during the Covid-19 pandemic is, at present, almost non-existent due to the closure of the Glasgow Tribunal Centre, the Scottish Government clearly felt that protection for tenants required to be enshrined in law so as to ensure that tenants were protected from potential homelessness while the pandemic is ongoing.

Duration of change

It should be noted that the Bill does not represent a permanent change to the law of residential evictions in Scotland, rather the above noted changes will automatically expire six months after they come into force. The Scottish Parliament may extend these measures for two further periods of six months, giving the measures in the Bill a maximum duration of 18 months. The Scottish Government will provide a report to Parliament every two months about the use of these emergency powers.

Ryan McKay, Partner
Dispute Resolution
Blackadders LLP
@BlackaddersLLP

 

www.blackadders.co.uk 

 

 

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