Fiona Scott

Many of these changes deal with administrative matters such as the ability to register deeds electronically at Registers of Scotland, or hold certain hearings remotely. However, the parts of the bill dealing with private rented sector properties seek to make some permanent substantive changes to private tenancy law.

Temporary Rules

Changes to tenancy legislation made during the pandemic included:

• extending the period of notice landlords were required to give tenants if they sought to take the property back, up to six months in many cases;
  banning the enforcement of certain eviction orders in the winter months;
• making all grounds for seeking possession discretionary, meaning that the First-Tier Tribunal would only grant an order for possession if it was considered reasonable to do so; and
• the introduction of pre-action protocols for tenants with rent arrears built up during the pandemic, requiring landlords to direct such tenants to help and information, and to make reasonable efforts to agree a payment plan for arrears. Compliance with pre-action protocols was one of the factors to be taken into account by the Tribunal when considering if it was reasonable to grant a landlord a possession order.

The bill proposes retaining the last two items on a permanent basis. Notice periods are reverting back to previous timescales from 31 March 2022, and evictions are able to be enforced as normal at present – though note that the New Deal for Tenants strategy consultation seeks views on restrictions on eviction in winter.

Proposed Permanent Rules – Eviction Grounds

The bill provides that all eviction grounds for all private rented sector tenancies (i.e. Regulated Tenancies, Assured Tenancies, Short Assured Tenancies and Private Residential Tenancies) will become discretionary. This means that instead of automatically being awarded a court order where procedural requirements are met, the Tribunal will have the discretion to make the award when it is reasonable to do so.

Grounds for repossession affected by the proposals include:

• the “no fault” ground entitling a landlord to recover possession by terminating a Short Assured Tenancy at its end date;
• mandatory grounds under Private Residential Tenancies entitling:
  • the landlord or a lender to recover possession in order to sell;
  • the landlord to recover possession where the property was let to an employee who is no longer an employee;
  • the landlord to recover possession in order to live in the property themselves.
• all mandatory grounds under Private Residential Tenancies and Assured/Short Assured Tenancies relating to rent arrears.

Landlords will still be able to serve notice and seek possession of the property on these grounds, but in all circumstances the Tribunal must be satisfied that it is reasonable to issue an eviction order.

On the basis that the bill seeks to modify the position in relation to Assured and Regulated tenancies (which can no longer be created) then it seems that the intention is that these changes have retrospective effect, thereby changing the terms of existing lease agreements.

Proposed Permanent Rules – Pre-action Protocols

The bill also proposes that pre-action protocols be introduced on a permanent basis for tenants in rent arrears. The bill amends the tenancy legislation such that the Tribunal must, when considering whether it is reasonable to grant an order for possession on grounds of rent arrears, take into account the extent to which the landlord has complied with the pre-action protocols.

Such protocols already exist in the social rented sector and these proposals look to reflect the first steps in the Scottish government’s stated desire to put private rented sector tenants on a more equal footing with tenants in the social rented sector.

Call for Views

The three-week period to provide views on the specifics of the bill has now closed. It is possible to provide feedback on the general principles of the bill by completing a survey via the bill page on the Scottish Parliament website until 18 March 2022.

Fiona Scott is a senior associate at Brodies LLP