03 April 2020

The emergency legislation in the Scottish Government’s Coronavirus (Scotland) Bill 2020 has implications for residential landlords and tenants across the private and social rented sectors.

The aims of the Government are to give increased protection to tenants during the current outbreak, when they are more likely to find themselves in financial difficulty, and to prevent the unnecessary movement of tenants, supporting measures to inhibit the progress of the virus.

The Bill does not impose a complete ban on eviction, or on landlords taking the preliminary steps towards eviction, such as the issuing of the various statutory notices. Instead, the Government is seeking to achieve its aims by a combination of extending notice periods, and providing for increased Court or Tribunal scrutiny before any evictions can be carried out.

Most residential tenancies are in either the private or social rented sectors. Private landlords have always had more freedom to evict, although the Private Housing (Tenancies) Scotland Act 2016 did away with the “no fault” evictions that had been allowed previously in this sector. Under the new Bill however, both private and social landlords will find themselves more constrained than they were in more “normal” times.

In both sectors, the amount of notice that landlords have to give tenants before they can apply for an eviction order has been extended from two to six months, for most purposes. There will be a shorter three month period in some cases where the landlord is relying on antisocial or criminal behaviour.

Prior to the current Bill, there were certain “mandatory” grounds for eviction. If the landlord was able to persuade the Court (in the case of registered social landlords) or the First Tier Tribunal of the Housing and Property Chamber (in the case of private landlords) that the ground applied, they were entitled to the eviction order. Now, in every case, the landlord will have to persuade the Court or Tribunal, as the case may be, that it would be reasonable to evict.

The Court, or Tribunal, will even have to be persuaded where the tenant has been convicted of using the property for an illegal or immoral purpose, or has been convicted of an offence punishable by imprisonment committed in the property or its locality. These are important mandatory grounds in more “normal” times.

At the time of writing, both the Courts and the Tribunal are operating a reduced service during the present “lockdown”, and many previously scheduled hearings have been postponed. Ten regional hubs have been set up to consider urgent Sheriff Court business, and the Tribunal is accepting applications for eviction orders electronically.

We cannot say with certainty how long these arrangements will remain in force. The Bill provides that its measures will automatically expire on 30 September 2020, or earlier if the Scottish Ministers think they are no longer necessary. However, the Bill also provides for extension by the Scottish Parliament for two further periods of six months.

Prudent landlords will plan for longer notice periods; be extra diligent about gathering and retaining evidence to support their grounds for eviction; and seek help from their lawyers with ensuring their notices and applications are all fully compliant with the new rules.

Will Cole, Partner, E: wco@bto.co.uk / T: 0131 222 2947