The Coronavirus (Scotland) Act (“the Act”) was passed unanimously by MSPs on 2nd April and will introduce sweeping changes to the residential and commercial leasing regime, particularly in relation to eviction grounds and notice periods. 

 

Residential Tenancies

Eviction Grounds

Private Residential Tenancies

The Act, in effect, removes all mandatory eviction grounds found in the 2016 Act, making them all discretionary. It does so by replacing the Tribunal “must”, with “may”.  

This includes the ground concerning rent arrears. Formerly this was a mandatory ground for possession if arears continued for a 3 month period, but the mandatory nature of this has been repealed in its entirety.

Assured and Short Assured Tenancies

For both Assured and Short Assured Tenancies, all eviction grounds are now discretionary. 

 

Notice Periods

The Act does not affect notices already served, unlike Commercial Tenancies (see below), and so the new notice periods will take effect following enactment.  

Private Residential Tenancies

The Act has the effect that the notice periods are generally extended. The exact length of notice will depend upon the grounds for repossession used. Generally, there are now three notice periods, 28 days, three months or six months.   

The 28-day notice period applies where the tenant is not occupying the let property as their home.

The notice period will be three months for the following grounds:-

  • The landlord intends to live in the property;
  • A member of the landlord’s family intends to live in the property;
  • The tenant has a relevant conviction;
  • The tenant has engaged in relevant antisocial behaviour;
  • The tenant associates in the let property with a person who has a relevant conviction or engaged in anti-social behaviour;
  • The landlord is not registered by the relevant local authority; or
  • The let property is a multiple occupation and not licenced appropriately. 

A six month notice period applies to all other grounds for eviction. 

Assured and Short Assured Tenancies

For Assured Tenancies, the relevant notice period under the Housing (Scotland) Act 1988 has been altered to be two months, three months, or six months. 

The minimum period of notice which applies, as above, depends upon the grounds used. 

Most notably, in relation to recovery of possession on the termination of a Short Assured Tenancy, the notice period has been extended from two months, to six months, in all cases.

Evictions Grounds and Notice Periods for Other Tenancies

There have been similar alterations for the Rent (Scotland) Act 1984 in that all eviction grounds are discretionary and there have been similar extensions to notice periods.  The same is also true for Scottish Secure Tenancies. 

Commercial Tenancies

For irritancy clauses in commercial leases, the Law Reform (Miscellaneous Provisions) (Scotland) 1985 will be modified by the Act. 

Irritancy warning letters for monetary breaches must now give a minimum notice period of 14 weeks rather than the previous minimum of 14 days under the 1985 Act.  Importantly, any notices already served including the 14 day time period (or the period required by the lease), and is unexpired at the date the Bill is enacted, will be invalid and need to be served again with the 14 week time limit. 

Non-monetary irritancy notices are unaffected by this change.

 

Comment

Notwithstanding the above changes for residential tenancies, because the First-Tier Tribunal has currently postponed all hearings until at least the 28th May 2020, possession orders cannot currently be obtained.

For commercial tenancies, the fact the Courts are only dealing with urgent matters effectively puts a temporary stop on evictions for non-payment of rent in the commercial sector for the time being.

In both situations, any rent arrears will continue to accrue which will no doubt lead to a bigger problem for both landlords and tenants.

All of the above provisions will be in force until 30 September 2020, but this can be extended by a further six month period (with a maximum of two extensions) if ministers deem necessary.

 

Further Help

For more information on anything mentioned in this post, please contact us at enquiries@turcanconnell.com or through the website.