- If a landlord wants to recover possession of a property let to a private residential tenant but the tenant does not leave voluntarily the landlord has to get an eviction order from the First-Tier Tribunal.
- In response to the Covid pandemic various rules concerning residential tenancies were changed. With effect from 1 October this year some of those changes brought in temporarily as a response to the Covid pandemic are to be made permanent.
The pre-pandemic situation
- Under the pre-pandemic rules there were certain grounds upon which the Tribunal was obliged to issue an eviction order provided (i) it was satisfied that the ground in question was established and (ii) any notice requirements had been fulfilled. These grounds were generally called the “mandatory grounds”.
- On the other hand, pre-pandemic, there were various grounds where the Tribunal was not obliged to issue an eviction order even if the ground in question had been established. Instead the Tribunal had a discretion as to whether to issue an eviction order or not. These grounds were generally called the “discretionary grounds”.
The response to the pandemic
- In response to the pandemic there were various changes to the legislation about private residential tenancies including:
- Making all grounds for seeking recovery of possession of let property discretionary so that the Tribunal would only grant an eviction order if it considered it reasonable to do so; and
- The introduction of pre-action protocols for tenants with rent arrears requiring landlords to try and agree a reasonable payment plan for paying off the arrears. Compliance by landlords with these pre-action protocols was a factor to be taken into account by the Tribunal in deciding if it was reasonable to grant an eviction order.
The Coronavirus (Recovery and Reform)(Scotland) Act 2022 (“the 2022 Act”)
- The 2022 Act will kick in from 1 October this year. The Policy Memorandum in relation to the Bill for the 2022 Act concerning private residential tenancies outlines the general aim as follows:
“301. Due to the emergency [Coronavirus] legislation, tenants have benefitted [sic] from additional legal protections – including the Housing and Property Chamber of the First Tier Tribunal for Scotland (“the Tribunal”) having greater discretion to consider all relevant factors in eviction cases.
- Other protections included the introduction of “pre-action requirements” which make clear that private landlords should support tenants who are struggling with rent arrears and are at risk of being evicted on that ground. These actions provide greater protections for those in the private rented sector…
- To protect private rented tenants from being evicted unreasonably or unnecessarily from their homes, the Bill:
- makes pre-action requirements permanent for private landlords by introducing what is now referred to as a pre-action protocol, so that support is given to tenants who are struggling with rent arrears and are at risk of being evicted as a result;
- gives the Tribunal a discretion to grant eviction in private rented sector tenancies regardless of the ground on which it is sought (the Tribunal previously being obliged to grant eviction on certain grounds) thereby enabling the Tribunal to consider all relevant circumstances before determining whether an eviction is reasonable.”
Particular comments about “short assured” tenancies under the Housing (Scotland) Act 1988
- The new rules heralded in the Policy Memorandum quoted above will apply to all residential tenancies whether “private residential tenancies” under the 2016 Act or “assured” or “short assured” tenancies under the 1988 Act or “regulated tenancies” under the 1984 Act.
- Perhaps the most common type of tenancy before the 2016 Act was the “short assured” tenancy. Although no new “short assured” (or “assured”) tenancies could be granted after the 2016 Act came into force those already in place before then could continue.
- In principle, under the old rules, a landlord could terminate such a “short assured” tenancy and be sure of the Tribunal granting an eviction order on the basis that this ground of recovery of possession was a “mandatory” one where the Tribunal had no discretion.
- But post-pandemic that changed and this ground – along with the other grounds – became “discretionary” and that will continue to be so under the 2022 Act.
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Paul Neilly: email Paul@mitchells-roberton.co.uk