The Private Housing (Tenancies) Bill was passed by the Scottish Parliament on 17 March 2016. The resulting 2016 Act is due to come into force at the end of 2017/beginning of 2018 with its aim to provide simpler tenancies and security for private tenants. There are also new rules relating to rent increases. It is a strict statutory system with the aim to remove some of the historic contractual ambiguity. Assured and Short Assured tenancies will be a thing of the past and we will now have a “Private Rented Tenancies”. Margaret Burness, former Housing Minister for Scotland has described the 2016 Act as necessary to “rebalance” the relationship between landlords and tenants. Some landlord groups have said that there are concerns that the balance has shifted too far in favour of the tenant but is yet to be seen how this will impact the sector in practice.
One of the main changes is that tenancies can continue indefinitely as there is no end date unless the landlord is able to rely on a strict set of criteria to end them. The days of a landlord taking back their properly simply because they wanted to are gone. Therefore no matter what side of the fence a dispute sits on, it is going to be much harder for landlords to repossess their properties. Notices to Quit have been replaced with Notices to Leave, which can only be served on the basis of at least one of the fewer available grounds of possession. Unless certain grounds are met (such as, the tenant owing three consecutive months rental arrears or having a relevant conviction), the landlord can only repossess the property on a notice period of 12 weeks and a resulting application to the First Tier Tribunal of the Housing and Property Chamber (“FTT”) (which also means that we as solicitors are losing our court gowns for landlord/tenant work!)
Many of the grounds for repossession are mandatory which means the FTT must grant the order but even some of the mandatory grounds have the ability to change into discretionary grounds in certain circumstances. Rent which has been payable for 3 consecutive months and equates to at least the value of one month’s rent requires that the tribunal must make the order. However, this rent must be due on the date that the tribunal considers the application so the tenant has the ability to clear a portion of their debt the night before a hearing, in which case the order is only discretionary.
There are also requirements set out in the 2016 Act for certain evidence to be provided to the tribunal to support the case, removing any ambiguity around discharging the burden of proof in certain circumstances. For example, if the landlord intends to live in the property, they must provide an affidavit to that effect or if they intend to sell the property, they must provide a letter of engagement from their solicitor or a recently prepared home report.
It is yet to be seen how this will all work in practice, with many aspects of the legislation still undergoing amendment but it is clear that the new Act is going to significantly change the landlord tenant process.
Jackson Boyd have a team of lawyers specialising in landlord tenant disputes. We are experienced in acting on behalf of both landlords and tenants and are happy to answer any questions in relation to the changes in the law and how it may impact you. Please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.
