As many of you will already be aware the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) (No. 2) Act 2020 bought in substantial changes to how private sector residential tenancies are dealt with, particularly in situations where landlords wish to recover possession whether by reason of a breach of the terms of the tenancy or otherwise. Both these Acts are in force until 31 March 2021 and could of course be extended.   

One of the most fundamental changes to assured, short assured and PRTs made by the legislation is that while it remains in force there are no longer any mandatory grounds for possession in First-tier Tribunal proceedings. All grounds for possession including those where there might be substantial rent arrears are now discretionary. Also, whereas previously short assured tenancies could be terminated at an expiry date and recovery of possession guaranteed, the law has been changed on a temporary basis to also make that ground for recovery discretionary.   

The No.2 Act provided it was possible for the Scottish Ministers to make regulations imposing pre-action requirements on landlords seeking to recover due to outstanding rent arrears. Those regulations have been made and came in to force on 6th October 2020.  In short, there is now a statutory requirement that landlords take steps to engage with their tenants to try and reach agreement in relation to payment of any outstanding rent arrears. There is an overarching reasonableness requirement. The landlord must make “reasonable efforts” to agree a “reasonable plan” to repay arrears.   

While it is difficult to criticise the Government for trying to protect tenants in present times, very little regard appears to have been given to the interests of landlords, many of whom will have their own financial commitments to meet.