The pandemic has brought temporary changes to the law governing residential tenancies. We answer common questions about what this means for landlords and tenants
Why the changes were introduced and how long do they last for?
The changes were introduced as part of the Coronavirus (Scotland) Acts 2020 (CSAs), which were designed to provide security for various sectors in the current climate. The provisions on residential tenancies increased the security of tenure of tenants by extending notice periods for terminating tenancies.
The CSAs are currently in force until 31 March 2021 but the government has the power to extend them by a further six months from that date.
Which tenancies are affected?
The CSAs affect almost all residential tenancies in Scotland including:
- Short Assured Tenancies
- Assured Tenancies
- Scottish Private Residential Tenancies
"It’s not enough for landlords to show that the ground applies and that the notice was validly issued; the relevant housing tribunal also has to consider whether it is reasonable for an eviction order to be issued."
How are evictions and repossession affected?
This depends on which type of tenancy is involved, since they each have different legal provisions, terminology, and requirements governing when a landlord can evict a tenant or recover possession of a property.
However, with all three types of tenancy, the CSA changes have a broadly similar theme: that many of landlords’ ‘usual’ mandatory grounds for repossession are, for the moment, discretionary only. This means that it’s not enough for landlords to show that the ground applies and that the notice was validly issued; the relevant housing tribunal also has to consider whether it is reasonable for an eviction order to be issued.
Notice periods have also changed.
Can you give any examples of changes to notice periods?
The changes vary for different tenancies, but two examples will illustrate the scale of the changes.
- With Short Assured Tenancies, landlords have to serve a ‘Section 33 notice’. The usual period of notice for this is 2 months; the CSAs have extended it to 6 months.
- With Scottish Private Residential Tenancies, the grounds for repossessing a property include a family member of the landlord wishing to live in the property, or the tenant engaging in relevant anti-social behaviour. Pre-Covid-19, the notice period for these was 28 days; with the CSAs, it is 3 months. With some other grounds, it is now 6 months.
Have evictions been banned?
The CSAs have been reported as imposing a ‘ban’ on evictions but this is not correct in law. It is still possible for landlords to serve notices and apply for orders to recover possession under the CSAs, but in most cases, repossession will take longer (for example, because of the longer notice periods) and is potentially less likely to succeed.
Notices which were validly served on or before 6 April 2020 will not be affected.
Can a landlord still evict a tenant who is still in arrears?
It is still possible to evict tenants on the basis of rent arrears, but, again, the process for eviction is longer and not guaranteed. Every situation is unique, so we cannot give one-size-fits-all guidance, but a tribunal would likely take into account whether a landlord made reasonable efforts to agree with the tenant a plan for arrears or future payments.
The Landlord may also be required to show that they followed the formal “pre-action requirements” set out in recent legislation – full article here.
If I am a landlord, should I still try to recover possession while the CSAs are in force or wait until they expire?
This will depend on the facts and circumstances of your situation, and we would recommend taking advice.
* Guidance is correct at 18 October 2020. For specific advice and updates, our Dispute Resolution & Litigation team will be happy to help.
There’s a longer version of this article, with more detail about the temporary changes and processes to be followed, available here.
