It has been a time of significant change in the law governing private residential tenancies in Scotland. The First Tier Tribunal (Housing and Property Chamber) took over responsibility for residential leases on the 1st of December 2017. This means that the Tribunal now has the power to deal with applications for eviction and for any other applications in respect of residential leases, instead of these matters being dealt with by the Sheriff Court.
The First-Tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations state that the over-riding tribunal objective is to deal with proceedings justly. This includes dealing with proceedings proportionality, seeking informality and flexibility and proceedings, ensuring that parties are on an equal footing procedurally and able to participate fully in proceedings and using the special expertise of the First-tier tribunal effectively. So what does this mean for landlords looking to apply for an eviction and for any other applications in respect of residential leases?
Main differences between the old system and the new system:
- Separate applications must be made for eviction and for any other order such as an order for payment of rent arrears. In the Sheriff Court, the request for all orders was made in the same court action. The Tribunal’s Regulations do allow them to hear all of the applications in relation to the same property together;
- The Tribunal does not charge a fee for lodging an application. This is in contrast to the position in the Sheriff Court, where a party had to pay court dues with raising an action;
- Unlike in the Sheriff Court where a party would normally be awarded expenses (although the expenses award may not cover the full amount of their legal cost), the Tribunal will not make any award of expenses, except in certain limited circumstances.
- The Regulations allow for cases to be decided without a hearing. In the Sheriff Court, a hearing was always assigned in cases involving private residential tenancies and the case always called in court;
- Appeals from the first tier tribunal will be heard by Upper Tier Tribunal for Scotland. Any appeals in respect of Sheriff Court decisions would have been dealt with by the Sheriff Appeal Court. There are also different rules for time limits in respect of appeals as set out in the Scottish Tribunals (Time Limits) Regulations 2016.
- The Tribunal can review the decision at its own instance or if asked to do so by a party to a case if it is in the interests of justice it is necessary to do so. It was not possible for a Sheriff to do this under the old procedure;
- The Regulations introduce “supporters”. Supporters can accompany an individual to the tribunal to assist a party by, for example, providing moral support, helping to manage documents and take notes;
- A party may apply for a recall of a decision made by the Tribunal in their absence within 14 days of the decision. However, the Tribunal can extend this period if they consider that there is a good reason to do so. A party must state why it would be in the interests of justice for the decision to be recalled. The other party must lodge a statement of objection within 10 days if opposing recall. The Tribunal can grant the recall application or refuse the application or assign a case management discussion. In the Sheriff Court, a party could lodge a Minute for Recall at any time before the order was fully implemented setting out their defence and the Court would fix a hearing on the Minute for Recall. As in the Sheriff Court, a party can only make an application for recall once in the same Tribunal proceedings.
Importantly, the new Private Residential Tenancy (PRT) was created by the Private Housing (Tenancies) Scotland Act 2016 and that any tenancies created from the 1st of December 2017 will be this new type of tenancy. There will be no end date in respect of these tenancies and landlords will have to use one or more of the 18 grounds in order to end the tenancy.
Important similarities between the First Tier Tribunal and the Sheriff Court:
- The relevant legislation still applies for short assured and assured tenancies entered into prior to 1 December 2017. This means that the Tribunal will be able to grant orders for eviction on the same basis as the Sheriff Court for these types of tenancy;
- While the Tribunal offices are based in Glasgow, they will assign any hearings in the area where the property is located in order to facilitate the attendance of parties;
- As with the Sheriff Court orders for eviction and payment (called decrees), a landlord will require to instruct Sheriff Officers to enforce any order such as to carry out the eviction or enforce any award for payment. The Order will not be issued by the Tribunal until the appeal period has passed, which is the same as the position with Sheriff Court decrees.
This area of law is likely to continue to develop in the near future with the Tribunal issuing decisions in respect of the new Private Residential Tenancy. At the moment, it is to be expected that most applications would relate to tenancies under the old regime but, as time goes on, it is to be anticipated that there will be more applications relating to the new tenancy type, leading to an increasing body of law in this area.
For information and advice on making an application to the Tribunal, please contact the Blackadders Dispute Resolution Team.
Lynn Fraser, Solicitor
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