The Cost of Living (Tenant Protection) (Scotland) Act 2022 has been passed by The Scottish Parliament and came into force on 28 October 2022.
The Act makes a number of changes to legislation applicable to rent and evictions for private tenancies in Scotland. The provisions of the Act will remain in force initially until 31 March 2023. However, the provisions can be extended by regulations to 30 September 2023 and, thereafter, to 31 March 2024.
This brief will focus on evictions for private tenancies and how the changes impact landlords in Scotland who have private residential, assured and short assured tenancies (regulated tenancies will not be discussed in this brief as they are now rare).
Background
The ongoing cost of living crisis resulted in the Scottish Government taking action to address the hardship that tenants could face over the winter period. Tenants’ Rights Minister Patrick Harvie recently stated: “The cost-of-living crisis is an emergency situation demanding an emergency response. Even as energy, food bills and other day-to-day basics become more expensive, today’s legislation freezing rents and protecting tenants from eviction will give tenants stability in their homes and confidence about their housing costs.”
How does the Act apply to evictions from private tenancies in Scotland?
The relevant provisions relating to evictions from private tenancies are contained in Schedule 2 to the Act. It is important to note from the outset that a private landlord is not prevented from making an Application for eviction to the First‑tier Tribunal for Scotland once a valid Notice to Leave, Form AT6 or Section 33 Notice has expired.
Rather, when an eviction order is granted in Tribunal proceedings, a landlord is unable to remove the tenant meantime. The only exception is where an eviction order is granted in proceedings raised before the Act comes into force in relation to an eviction notice served before 6th September 2022. In that event the eviction can be enforced. The prohibition on eviction will remain in force for six months from the date the eviction order is granted or until the date of the expiry or suspension of the relevant provision of the Act (whichever is earlier).
New Grounds of Eviction
Whilst the provisions mentioned above may seem draconian at first sight, new grounds of eviction have been inserted into the Housing (Scotland) Act 1988 and the Private Housing (Tenancies) (Scotland) Act 2016 in an attempt to rebalance landlords’ interests at least to some extent. These new grounds of eviction are not caught by the prohibition discussed above. In addition, some of the existing grounds of removal (such as antisocial and criminal behaviour and the tenant not occupying the dwellinghouse) are entirely unaffected.
For private residential tenancies, a landlord will be able to apply for and enforce an eviction order where:-
- he or she intends to sell the dwellinghouse to alleviate financial hardship,
- he or she intends to live in the dwellinghouse to alleviate financial hardship or
- if the tenant has substantial rent arrears.
For assured tenancies (including short assured tenancies), a landlord will be able to apply for an eviction order where:-
- he or she intends to live in the dwellinghouse to alleviate financial hardship or
- if the tenant has substantial rent arrears.
The Act defines substantial arrears as being six or more months of arrears.
Timing and initial thoughts on the Act
The announcement of an eviction ban by the First Minister in early September caused understandable consternation amongst landlords and bodies representing their interests.
Due to the pandemic, landlords previously had to contend with longer notice periods, new pre‑action requirements and all grounds of eviction being made discretionary ones. The conversion of mandatory grounds to discretionary grounds is now permanent and is a radical departure from over thirty years of housing law in Scotland where mandatory grounds of eviction were common. The pre-action requirements are here to stay too for rent arrears based cases. Housing law in Scotland is still in a state of flux and keeping up with such changes can be challenging for landlords and advisers. The continuing uncertainty will make it difficult for landlords to commit to the private rental sector on a long-term basis.
It is important that landlords comply with the eviction processes set out in legislation. Unlawfully evicting a tenant could result in a landlord being subject to significant claims for statutory damages or common law damages. In relation to statutory damages, the amount of damages that can be awarded to a tenant has been amended by virtue of the Act and is now not less than three months’ rent and not more than thirty-six months’ rent. An unlawful eviction could also open a landlord up to criminal prosecution. It is strongly advised that landlords obtain legal advice from a solicitor if they are unsure of their rights and the legal process for evicting a tenant.
Insight from Calvin Gordon, Dispute Resolution & Claims Solicitor. For more information contact Calvin or a member of the team on 03330 430350.
