Neil Casey

The Scottish Government has passed the Coronavirus (Scotland) Bill, which will now become law. These emergency provisions are due to expire on 30 September 2020, although ministers have the power to extend them by up to 12 months, giving a total duration of up to 18 months for the new powers. Below are some of the proposed changes that will be coming into force once the Bill becomes law.

Evictions from Dwelling-Houses

Scottish Secure Tenancies

Notice periods in the Notice of Proceedings (NOP) will be extended by this emergency legislation. Under existing legislation, proceedings can only be raised after the NOP has been served. That period was four weeks following service, or the date on which the tenancy could have been brought to an end by a notice to quit had it not been a Scottish secure tenancy (SST), whichever is the later.

• The four-week period still applies for Ground 5, i.e. the tenant is not occupying the property.
• A new three month period now applies for the following grounds:
  • Ground 2 (relevant convictions);
  • Ground 6 (inducement by false statement); and
  • Grounds 7 and 8 (anti-social behaviour).
• All remaining grounds, including Ground 1 (rent arrears), will be subject to a six-month notice period.

Short Scottish Secure Tenancies are also affected. The two-month notice period for raising proceedings now only applies where the tenancy has been converted under s.35 of the 2001 Act or Grounds 1, 2 and 2A of Schedule 6 (anti-social behaviour/ASBOs). Terminating on any other ground is now subject to the six-month notice period.

Wording of Notices

The wording of the prescribed notices has also been changed. So, if using the forms for Residential Tenancies provided on the First Tier Tribunal: Housing and Property Chamber website, please take care to ensure that the relevant changes have been incorporated and that the form you are using is not out of date. This also applies to Short Assured Tenancy Notice forms (AT5s) and NOPs. Issuing a form of notice that does not take proper account of all the changes may not render the notice invalid. However, a landlord cannot rely on the shorter periods of notice in the incorrect notice and must still act in accordance with the new periods in the legislation.

Mid-Market Tenancies

Private Residential Tenancies were introduced by the Private Housing (Tenancies) (Scotland) Act 2016 in place of Short Assured Tenancies and Assured Tenancies. The bill effectively removes all of the mandatory grounds for eviction and makes them discretionary. So, instead of “the Tribunal must find that the ground applies”, it is now “the Tribunal may find that the ground applies.” This particularly applies to the Landlord’s Status section of Schedule 3 of the 2016 Act. Also, the Tribunal now has to be satisfied that it is reasonable to issue an eviction order on account of those facts.

A tenant not occupying the let property remains a mandatory ground. The breach of tenancy ground is also unchanged (this already has a reasonableness test).

Section 12 of Schedule 3 relates to rent arrears. The mandatory ground set out in S.12(2) has been repealed in its entirety. This is the section that said that on the day that the Tribunal considers the application for eviction on its merits (so effectively the case management discussion), if the tenant is in arrears of an amount equivalent to at least one month’s rent, and has been in arrears for three consecutive months, then the Tribunal must find the ground established and grant the order.

What remains is S.12(3). Where the tenant is in arrears for at least three consecutive months, and the Tribunal is satisfied that it is reasonable to do so, then the Tribunal may grant the order for eviction.

Changes to Notice Periods (S.54 of the 2016 Act)

• The 28-day notice period now only applies where the tenant is not occupying the let property as the tenant’s home.
• There is a new three-month notice period for the following grounds:
  • the landlord intends to live in the property;
  • a family member of the landlord intends to live in the property;
  • the tenant has a relevant conviction;
  • the tenant has engaged in anti-social behaviour;
  • the tenant associates, at the let property, with a person with relevant convictions or has engaged in relevant anti-social behaviour;
  • that the landlord is not registered by the relevant local authority under the Antisocial Behaviour etc. (Scotland) Act 2004;
  • that the let property or associated living accommodation is in multiple occupation and not licensed under Part 5 of the Housing (Scotland) Act 2006; or
  • crucially, if a landlord is using the ground that the tenant is not occupying the let property, if they also include another of the grounds stated above, the notice period is the full three-months.
• For all other grounds, the notice period is six months. Landlords should note that this includes rent arrears.

There are similar changes to the Housing (Scotland) Act 1988 in relation to Assured and Short Assured Tenancies. For Registered Social Landlords, these changes are applicable to mid-market tenancies.

Conclusion

The changes to Scottish Secure Tenancies and Short Scottish Secure Tenancies (SSSTs) are only in relation to the notice periods, not the reasonableness test in S.16 of the 2001. That said, no doubt the courts will carefully consider matters in light of the COVID-19 pandemic. Therefore, we can expect Sheriffs, as well as Tribunal members, to be very reluctant to grant an order for recovery of possession where a tenant’s ability to enter into a payment arrangement or ability to obtain relevant benefits has been adversely affected because of the pandemic.

For the moment, most sheriff courts are closed and ten “hub” courts are operating (one in each Sheriffdom) and dealing with emergency civil business only. Most courts have sisted all heritable actions until further notice. It is not clear whether the courts will consider a fresh action raised as the NOP is expiring to be urgent business. If not, this would require a fresh NOP to be served under the emergency legislation. The legislation is due to expire in six months, subject to further extension. It is entirely possible that once the emergency legislation expires for Registered Social Landlords (RSLs) to re-issue NOPs specifying the shorter periods of notice, notwithstanding any previous NOPs that have been served.

Neil Casey is an associate in Shepherd and Wedderburn’s property and infrastructure disputes team