2020-04-14 13:17:17
The Coronavirus (Scotland) Act 2020 is now law. It brings major changes to housing law and
practice, which will impact a large number of tenants for the foreseeable
future. The emergency provisions are initially
effective until 30 September 2020 but may be extended by the Scottish Ministers
up to a further year. These changes
could well be with us for the medium term, and it is crucial that advisers,
lawyers, and others are familiar with them.
The Legal Services Agency remains committed to defending the
right to a safe, secure, and affordable home.
Our solicitors are fully equipped to provide advice and assistance by
telephone. If you or someone you know
might be affected by these changes, please contact us.
Private rented sector
Arguably the most noteworthy change is that all evictions in
the private rented sector are now discretionary. This means the tribunal is no longer bound to
grant an eviction order when a given set of facts are proved, but rather, may
do so only if satisfied that it is reasonable in the circumstances. The changes extend to both modern private
residential tenancies and older (short) assured tenancies.
Housing rights campaigners will particularly welcome changes
to the mandatory, no-fault eviction ground in short assured tenancies, under
section 33 of the Housing (Scotland) Act 1988.
This requires only that a landlord serve valid notices to end the
tenancy, after which the tribunal is bound to grant an eviction order. However, it is now to be read as though it is
discretionary; it is for the tribunal to decide whether it is reasonable to
evict the tenant considering the full facts.
In recognition of the economic difficulties that lie ahead, there
are important changes to the rules around eviction on rent arrears
grounds. The Private Housing
(Tenancies) (Scotland) Act 2016 provides that if a tenant is in arrears
equivalent to more than one month’s rent, and has been so for at least three
consecutive months, the tribunal is obliged to grant an eviction order. The relevant paragraph is now to be read as
though it had been repealed. Schedule 3,
paragraph 12(3) of the 2016 Act, however, remains unchanged, which means that
where a tenant is in arrears of rent for at least three months, the tribunal may
grant an eviction order if satisfied that it is reasonable to do so.
Notice
periods have also been extended across the board. The minimum period of notice in most cases is
now six months. There is a shorter
period of 28 days for the tenant not occupying a property let under a private
residential tenancy. The period has also
been extended to three months, rather than six, for:
It must be noted that all these changes apply only to
actions where notice is served after the commencement of the 2020 Act. This means that where a landlord served
notice specifying mandatory grounds prior to 7 April 2020, a tribunal would
still be bound to evict the tenant. The
First-tier Tribunal for Scotland (Housing and Property Chamber) has advertised
that it does not intend for tribunals to sit until at least 28 May 2020, which
may prevent some evictions during the current crisis. However, it has also confirmed
that orders will continue to be issued administratively in the immediate future. Those tenants against whom an order was
granted before now may consequently find themselves at imminent risk of
eviction during the greatest public health crisis of generations.
Social rented sector
The 2020 Act also introduces changes which will affect
tenants in the socially rented sector.
Whilst there is no modification of eviction grounds, there are significant
changes to notice periods.
Before court action for eviction of a tenant can be raised,
a social landlord must issue a Notice of Proceedings for Recovery of
Possession. Legislation previously
provided that at least four weeks must pass between service of the notice and
raising of an action for eviction of a Scottish Secure Tenant. That period has now been extended, in most
cases, to six months. A shorter period
of three months applies where eviction is sought due to antisocial behaviour,
criminal conviction, and fraud.
The extended notice periods will, for example, give those tenants
affected financially by Coronavirus a reasonable period in which to address
rent arrears. However, as in the private
sector, the changes are effective only for notices served after 7 April. For tenants served with notice prior to this
date, whose circumstances are exacerbated by the current crisis, it is vital
that they seek appropriate legal advice and representation.
Human Rights – and the application of the Human Rights
Act
Both Paul
Brown and Ben Christman
have written, on this blog, about the impact of the current public health
emergency on human rights. Most relevant
to the issue of housing is Article 8 of the European Convention on Human
Rights, which provides that everyone has the right to respect for their private
and family life, including their home.
This is incorporated into UK law by way of the Human Rights Act
1998.
Courts and tribunals may apply the Coronavirus (Scotland)
Act 2020, as any other, only insofar as it complies with the Human Rights Act
1998 and the Convention rights contained therein. If a tenant seeks to challenge an eviction on
human rights grounds, courts and tribunals must decide whether the eviction is
a ‘proportionate’ interference with their Article 8 rights. Critically, courts must consider
proportionality only where it is raised by the tenant as a defence to an
action. It is therefore vital that
anyone at risk of eviction in the coming months take expert legal advice in
relation to proportionality and other human rights-based defences which may be
available to them.
Embedding rights
Whilst these changes are welcome,
they fall far short of adequately protecting even the most vulnerable
tenants. A tenant against whom an
eviction order was granted in the past weeks might soon find themselves evicted
from their home during a public health crisis like nothing we have seen
before. Whilst the Scottish Federation
of Housing Associations has committed
to halting evictions until the crisis is over, they do not bind all social
landlords, far less those in the private sector. There must be nothing short of an absolute
ban on evictions whilst restrictions on movement are in place, in the interests
of preserving public health and relieving pressure on public services.
There are few rights and needs
more fundamental than a safe, secure, and affordable home. The right to adequate housing is enshrined in
international law – in both the International Covenant on Economic, Social, and
Cultural Rights and the Charter of Fundamental Rights of the European Union. The Coronavirus crisis has shown that, when
circumstances dictate, we can take decisive national action to bolster housing
rights. We must continue this effort. The effects of the Coronavirus pandemic will
undoubtedly be with us long after 30 September 2020, and the most vulnerable
members of our society will be disproportionately affected. We must reflect, and take this opportunity to
embed the right to housing in domestic law.
Shaun McPhee
Trainee Solicior
LSA
