The Scottish Parliament has made major changes to landlord/tenant law in Scotland (i.e. private sector residential tenancies), and the current position is as follows: –
As has been the case now for over five years, effectively all Scottish private sector residential tenancies are now categorised as such i.e. as a Private Residential Tenancy (PRT) and
- a PRT cannot be terminated by a landlord except for specified statutory reasons
- 18 such reasons are stipulated (as set out in Schedule 3 of the Private Housing (Tenancies) (Scotland) Act 2016)
- 8 of these reasons were mandatory – i.e. eviction had to be ordered (these included anti-social or criminal behaviour; and a landlord’s intention to sell or live in the property)
- the other 10 reasons were discretionary – eviction might be ordered if reasonable overall (these included minor breaches of tenancy agreement and a landlord’s family member’s intention to live in the property)
with a landlord being unable lawfully to evict without first getting an order from a Tribunal – the Housing and Property Chamber – and only being able to do so following service of a statutory notice on the tenant which specifies the reason relied upon.
However, further tightening this law (this tightening originally as a result of legislation introduced because of the Covid pandemic but now – recently extended by legislation enduring until at least 31st March this year): –
- all 18 statutory reasons are now only discretionary; the Tribunal has to be satisfied that not only is the statutory reason relied upon established but also that eviction is reasonable overall in the circumstances of the case;
- in rent arrears cases, a landlord additionally has to observe pre-action requirements before being able to give statutory notice (these requirements including giving specified written information and are outlined in the undernoted link);
- an eviction order cannot currently be enforced for six months, save in limited cases (being the nine undernoted reasons); this because there being otherwise a statutory moratorium until at least 31st March 2023
- this moratorium on eviction running alongside a moratorium on rent increases (again until at least 31st March 2023)
Practical consequences
We are still able to raise eviction proceedings to the Tribunal, but – save in the minority of cases (the nine undernoted reasons) – not enforce any Tribunal order. Because the Tribunal has a discretion in all cases, it is focusing on the issue of reasonableness and it considers the full circumstances surrounding an application to evict a tenant and requires full visibility on the financial position. In recent hearings we have experienced the Tribunal wanting full information regarding (a) a landlord’s financial position including the number of properties owned by the landlord and whether or not these are mortgaged; the landlord’s income sources and outgoings, including whether they support a family (b) the tenant’s possible entitlement to backdated benefit payments and financial position including income and whether they support a family. We cannot be confident of the Tribunal’s issuing an order – matters in all cases being discretionary and among other things subject to the Tribunal’s view of reasonableness overall; and even if we manage to get the eviction order this is taking many months to obtain after the application is made; and that eviction order is likely not enforceable in the majority of cases until at least 1st April this year.
Taking the example of rent arrears, the relevant timescales currently involve a period of approximately a year before eviction can be enforced this based on the practicalities that (i) a landlord realistically needs to await until the tenant has been in substantial rent arrears; then (ii) comply with the pre action requirements ; before then (iii) serving statutory notice (28 days); and only then (iv) can Tribunal proceedings be raised; which proceedings (v) can take several months to be determined (we would say currently around six months); and even if (vi) the Tribunal in its discretion is prepared to order eviction; that order (vii) will not be likely be issued until the statutory appeal period has expired (30 days) and (viii) cannot be enforced unless the order is in respect of rental arrears of at least the equivalent of six months’ rent.
At present we are not sure what the Scottish Parliament intends to do come 31st March 2023, but to date it appears to be weighted towards tenant’s rights and so likely to remain in place.
Undernote
Grounds for removal where 6 month moratorium does not apply:
- Landlord intends to sell to alleviate financial hardship (for market value within three months of the tenant ceasing to occupy it)
- substantial rent arrears (at least to a value of at least six months’ rent)
- landlord intention to take the property back to live in it and that so as to alleviate the landlord’s financial hardship (a letter from an accountant or financial adviser may be used to evidence the financial hardship)
- anti-social behaviour in the property (application typically has to be made within 12 months of the offending behaviour)
- criminal conviction relating to the property (the offence must be committed within the locality of the property)
- association with a person who has a relevant conviction (the conviction must be one which if the tenant’s would warrant that tenant’s removal)
- tenant not occupying let property (i.e. the tenant has abandoned the property)
- tenant no longer being an employee (e.g. a service tenancy, when tenant was landlord’s employee)
- property to be sold by lender (e.g. mortgage company)
