Important Changes to Tenancy Law in Scotland

Background:

The Scottish Government is currently holding a consultation which aims to develop and modernise Scottish Tenancy Law. There are now over 368,000 privately rented homes in Scotland and it has long been apparent that the existing legislation, introduced over 26 years ago, is in drastic need of updating.

Introduction of a Private Rented Tribunal:

One of the most common criticisms from both Landlords and Tenants is the length of time it takes for a decision to be obtained from the court. This issue has become more pronounced due to the increased pressure on courts following the recent court closures and it is now common for cases not to be resolved until many months after the tenancy relationship has broken down.

This is in neither the Landlord nor the Tenant’s best interest and as such, the Scottish Government plans to remove Tenancy issues from ordinary court business and dedicate a special Private Sector Rented Tribunal (PRS). It is hoped that this measure will make it easier, cheaper and faster to resolve disputes.

Abolition of “No fault” eviction:

The law itself will also undergo modernisation to reflect the current market. Perhaps the most fundamental change will be the removal of the “no fault ground” for eviction. At present tenants can be removed from properties simply on the basis that certain statutory notices were provided before the commencement of the tenancy and that the tenant was informed 2 months before the tenancy end date that they would be required to vacate the property. The Court had no discretion to delay or prohibit eviction of the tenant on this ground and if this ground is abolished Landlords will need to demonstrate a specific reason for terminating the tenancy.

Abolition of discretionary grounds of eviction:

Currently, apart from the above mentioned ground there are 17 grounds for which the landlord may evict a tenant. Half of these grounds allow for the Sheriff to exercise some discretion as to whether the tenant should be evicted; whilst the other half bind the Sheriff to grant an order of eviction if they apply. It is intended to replace the 17 grounds with 8 grounds which do not allow the Sheriff to exercise discretion. These would be as follows:

  1. That the landlord wants to sell the home
  2. That the mortgage lender wants to sell the home
  3. That the landlord wants to move into the home
  4. That the property is to be refurbished
  5. That the use of the home is to be changed
  6. That the tenant failed to pay three full months’ rent
  7. That the tenant is anti-social
  8. That the tenant has otherwise breached the tenancy agreement.

It is hoped that with the removal of the discretionary grounds, cases will be more straightforward and faster as at present when discretionary grounds are used the individual circumstances of each case require to be carefully examined which can be  a time consuming process.

Modification of Notice to Quit periods:

The final major proposal is a modification of how the notice periods prior to eviction operate. Currently, a tenant may be asked to vacate a property after either 28 or 40 days. It is instead proposed that the notice period would vary depending on how long a tenant had stayed in the property. However, an exception is provided for when either ground 6, 7 or 8 applies.

Summary:

If implemented the Scottish Government’s proposals will have a dramatic impact on the rental market. Both the major and minor modifications aim to reduce the reliance on solicitors and courts throughout the tenancy relationship, from creation to termination. However, the effectiveness and viability of these measures are yet to be determined.

Alastair Johnston
Solicitor – Dispute Resolution
www.blackadders.co.uk

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