25th February 2022

Residential Tenancies – How do the recent changes affect you?

The Coronavirus (Scotland) Act 2020 and The Coronavirus (Scotland) (No. 2) Act 2020 (“the Acts”) were passed by the Scottish Government at the start of the coronavirus pandemic. The Acts were introduced as emergency legislation to provide a number of protections for members of the public and the economy during the pandemic. The 2020 Acts made changes to the Housing (Scotland) Act 1988 and the Private Housing (Tenancies) (Scotland) Act 2016 in relation to eviction of tenants.  

Given the current state of the pandemic and a move to ‘living with coronavirus’, the Scottish Government have passed The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2022. These regulations come into force on 29 March 2022 and make a number of changes that will impact tenants and landlords.

Notice Periods

Currently, the notice period for termination of private residential tenancies, short assured tenancies and assured tenancies has been extended. Most grounds for eviction require the landlord to give the tenant 6 months’ notice of termination. There are certain grounds where the landlord can provide 28 days, two months or three months’ notice, however such grounds are limited.

The Regulations revert the notice periods back to what they were pre-coronavirus.

Private Residential Tenancies

For Private Residential Tenancies, assuming the tenant has lived in the property for more than six months, most notice periods will be 84 days or 28 days as of 30 March 2022.

The grounds requiring 84 days’ notice are:

  • The landlord intends to sell the property;
  • The property is to be sold by the lender;
  • The landlord intends to refurbish;
  • The landlord intends to live in the property and use it as their principal home;
  • A family member intends to live in the property as their principal home;
  • The landlord intends to use the property for non- residential purposes;
  • The property is required for religious purposes;
  • The tenant is no longer an employee of the landlord; and
  • The tenant is no longer in need of supported accommodation.

The grounds requiring 28 days’ notice are:

  • The tenant is not occupying the property as their principal home;
  • There is a breach of the tenancy agreement;
  • There have been rent arrears for 3 consecutive months;
  • The tenant has received a relevant conviction;
  • The tenant has been involved in antisocial behaviour;
  • The tenant is associated with a person who has a relevant conviction or has engaged in relevant antisocial behaviour and they reside in the property or have been admitted on more than one occasion;
  • The landlord is no longer on the landlord register because they have been refused by the local authority or removed;
  • The landlord’s HMO licence has been revoked; and
  • The landlord has received a statutory overcrowding notice.

Notice periods do change if the tenant has not resided in the property for six months.

Short Assured and Assured Tenancies

For Short Assured and Assured Tenancies, the eviction grounds are slightly different. The notice period required for these tenancies as of 30 March 2022 is usually two weeks or two months.

The grounds requiring two months’ notice are:

  • The landlord or their spouse/ civil partner requires the property as their principal home;
  • The mortgage for the property is in default and the lender wishes to sell the property;
  • The property is going to be used for a minister of lay missionary;
  • The property requires re-development;
  • The tenant has died and the tenancy was inherited;
  • The landlord has provided suitable alternative accommodation; and
  • The tenancy was let under condition of employment and the tenant no longer holds that employment.

The grounds requiring two weeks’ notice are:

  • The property is an off-season holiday let;
  • The property is student accommodation;
  • The tenant has at least three moths rent arrears;
  • The tenant served notice to quit but didn’t leave;
  • The tenant persistently delays in paying rent;
  • The tenant has some unpaid rent;
  • The tenant has breached the tenancy conditions;
  • There is a deterioration of the property or common parts;
  • The tenant or someone in the property has engaged in a nuisance or annoyance; and
  • The condition of furniture has deteriorated.

Short Assured and Assured tenancies can also be terminated at their ‘ish’ i.e. when the tenancy has run its’ course. The notice period for termination on this basis is two months.

All Private Tenancies

Whilst the regulations do amend the notice periods for eviction, they do not impact on the other protections that the Scottish Government have introduced for tenants. When eviction is based on rent arrears, the landlord must still follow a pre-action protocol. The purpose of the pre-action protocol is to provide tenants with information on their rights, and as to where they can access help and support. The protocol also encourages landlords to work with tenants and reach a payment plan.

Additionally, prior to coronavirus, certain grounds of eviction were mandatory, meaning the First Tier Tribunal judge had to granted the eviction order if the ground was satisfied. This provision has been removed and in all eviction cases, the ‘reasonableness’ test requires to be considered. Landlords will be required to produce evidence to establish that it is reasonable in all the circumstances of the case to evict, as tenants have a defence available to them that it is not reasonable to so evict.  

Any notices that are issued before 30 March 2022 cannot be withdrawn or suspended by re-serving notice after the 30 March 2022. For this reason, if you are a landlord seeking to terminate a lease, it is important that you seek expert legal advice on the best option and in particular the timing of the notice.

For information and help with any landlord and tenancy issues please speak to a member of the Blackadders Dispute Resolution Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Susan Currie, Senior Solicitor
Dispute Resolution
Blackadders LLP
@DisputeLawSusan

Heather Maltman, Trainee Solicitor
Dispute Resolution
Blackadders LLP
@traineemaltman

www.blackadders.co.uk

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