Landlords, winter is coming!

With the nights drawing in it won’t just be the weather that bites on the 1st of December, the Scottish Government have confirmed that the long anticipated replacement tenancy scheme for Scotland, known as a Private Residential Tenancy (PRT) will be in force from December. In a nutshell the new scheme is a decided shift towards tenant’s interests from a legal framework which was already fairly tenant friendly.

In effect little will change for landlords and tenant with a pre-existing short assured tenancy as this framework will remain in place even if the tenancy has overrun its original term and is continuing by tacit relocation. The changes will only affect new tenancies from the 1st December 2017.

A model tenancy agreement was released by the Scottish Government at the end of October and is available online. It is hoped that this will harmonise the leasing market and remove some of the drafting anomalies encountered by both landlords and tenants. The model agreement can however be modified to a certain extent but certain clauses are noted as being mandatory and cannot be modified.

One of the biggest changes is that under a PRT a start date will be agreed between the parties and the tenancy will continue indefinitely until it is terminated by either party in accordance with statutory provisions.

An area which is proving somewhat controversial is that if tenants wish to terminate the tenancy they must give the landlords 28 days’ notice in writing, however, if a landlord wishes to evict a tenant the notice period varies depending on a number of factors not least how long the tenancy has been in place. For example, the notice period for removing a tenant (not due to a fault ground) is 28 days if the tenant has been in residence for 6 months or less but increases to 84 days if the tenancy has existed for more than 6 months.

The new grounds for eviction are mostly mandatory grounds but with elements which must be established before they apply, such as the tenant owing some rent for 3 consecutive months. In the event that the tenant refuses to leave, the landlord must obtain a court order for their removal. If a mandatory ground applies the court must grant the necessary order once the criteria is established, if a discretionary ground is relied on, the court must consider the reasonableness of the request. This distinction is similar to the previous scheme and the biggest change is in fact where these court proceedings take place. Rather than proceedings for eviction being raised in the Sheriff Court, eviction actions will now be raised in the Housing & Property Chamber and it is hoped that this will allow cases to progress more swiftly without other types of cases taking up court time.

With the changes to the law it is vital to consult with your solicitor to establish whether the situation you are facing invokes either a mandatory or a discretionary ground and to identify those facts which must be established. If you have any queries regarding the new scheme or require assistance in relation to a tenancy dispute please contact our dispute resolution team.

Alastair Johnston, Dispute Resolution
Senior Solicitor

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