Eviction of tenants during the Coronavirus pandemic - Guidance on how private landlords should deal with rent and terminating tenancies

02 Feb 2021

By Nicola Brown, Associate Solicitor in Dispute Resolution at Blackadders LLP

Since the start of the pandemic the Coronavirus (Scotland) Act 2020 and Coronavirus (Scotland) (No. 2) Act 2020 have been passed by the Scottish Government. The new Acts were introduced to provide security to various sectors during the pandemic. The new legislation makes temporary changes to the Housing (Scotland) Act 1988 and the Private Housing (Tenancies) (Scotland) Act 2016. These new rules will be in place until at least the 31^st March 2021 and may be extended beyond this date.

The new rules affect all residential tenancies in Scotland including Short Assured Tenancies, Assured Tenancies and Scottish Private Residential Tenancies. The changes are designed to improve the security of tenure for tenants by extending the notice periods as well as introducing pre-action requirements for rent arrears cases. The legal criteria which apply to Notices and applications for repossession have also changed, most notably all grounds are now discretionary grounds for removal which means that the Tribunal will use discretion and take all factors relating to the impact of COVID-19 into account before deciding whether to issue an eviction order or not. If the Tribunal decides it is not reasonable then it will refuse the application and no order for possession will be granted. This discretion applies even if ending a short assured tenancy at the 'ish' (the end date of the tenancy).

As well as temporarily changing the rules surrounding tenancies the Scottish Government has imposed a ban on winter enforcement of eviction orders, until 31^st March 2021. It is however still possible for landlords to serve notices and apply to the Tribunal to recover possession during this period. A list of the notice periods which currently apply to Private Residential Tenancies, Assured and Short Assured Tenancies is below *. In summary, however, the new rules temporarily extend the length of notice landlords must give when ending a tenancy to six months in most cases. The six months’ notice period also applies when ending a short assured tenancy at its end date.

In addition to extending the Notice periods, The Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 which are in force until at least the 31^st March 2021 set out pre-action requirements for landlords where rent arrears that have arisen (whether wholly or partially) during the pandemic. Landlords must comply with the pre-action requirements before eviction action is being taken in respect of any assured, short assured or private residential tenancy and will be required to demonstrate to the first-tier tribunal how they have complied. Landlords are encouraged to engage with this pre-action process as soon as possible when arrears of rent occur, and failure to do so will result in an order for possession being refused by the Tribunal.

The pre-action requirements, require the Landlord to provide the tenant with clear information (in writing or email) relating to the terms of the tenancy agreement; the amount of rent arrears; their rights, including the pre-action requirements and the need for an order to be granted by a tribunal, as well as how the tenant may access information and advice on financial support and debt management. Additionally, the landlord must make reasonable efforts to agree on a reasonable plan with the tenant for payment of arrears and future rent. In applying the pre-action requirements the landlord must also give reasonable consideration to steps being taken by the tenant which may affect their ability to make payment of the rent for which the tenant is in arrears within a reasonable time; the extent to which the tenant has complied with an agreed plan; and any changes in circumstances which affect the tenants' ability to comply with an agreed plan.

The Scottish Government wishes to avoid tenants losing their homes as a result of the pandemic. The consequences of this legislation are that the removal of tenants will take longer and will inevitably be more difficult. Landlords will require to show when applying to the First-Tier Tribunal on all grounds that eviction is reasonable. In the case of rent arrears, particular care is required, and landlords must now seek to engage with tenants prior to eviction proceedings commencing for there to be any prospect of an order for possession being granted.

*Notice Periods in force for Private Residential Tenancies until 31 March 2021

Grounds that require 6 months’ notice:

• Your Landlord intends to sell the Let Property
• The Let Property is to be sold by the mortgage lender
• Your Landlord intends to refurbish the Let Property
• Your Landlord intends to use the Let Property for a non-residential purpose
• The Let Property is required for a religious purpose
• You cease to be - or fail to become - an employee of the Landlord
• You no longer need supported accommodation
• You have breached a term(s) of your tenancy agreement
• You are in rent arrears over three consecutive months
• An Overcrowding Statutory Notice has been served on your Landlord

Grounds that require 3 months’ notice:

• Your Landlord intends to live in the Let Property
• Your Landlord’s family member intends to live in the Let Property
• Your Landlord has had their registration refused or revoked
• Your Landlord’s HMO licence has been revoked or renewal has been refused

Grounds that requires 28 days’ notice:

• You have a relevant criminal conviction
• You have engaged in relevant antisocial behaviour
• You have associated in the Let Property with someone who has a relevant criminal conviction or has engaged in relevant antisocial behaviour
• You are no longer occupying the Let Property

Notice Periods in force for Assured Tenancies until 31^st March 2021

Grounds that require 6 months' notice:

• Mortgage default
• Off-season holiday let
• Vacation let of student accommodation
• Minister or lay missionary property
• Re-development
• Tenancy inherited under a will or intestacy
• Three months' rent arrears
• The tenant served notice to quit but didn't leave
• Persistent delay in paying rent
• Some rent unpaid
• Breach of tenancy condition
• Deterioration of the house or common parts
• Deterioration of condition of furniture
• Ex-employees of the landlord

Grounds that require 3 months' notice:

• Landlord wants to move into the home or it was previously their own home
• Nuisance or annoyance

Grounds that require 2 months' notice:

• Suitable alternative accommodation available

If you need any advice regarding evictions, please get in touch with the Blackadders Dispute Resolution Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth, and across Scotland.

Nicola Brown, Associate Solicitor Dispute Resolution Blackadders LLP @BlackaddersLLP

www.blackadders.co.uk