HOUSING LAW AND CORONAVIRUS: WHERE ARE WE NOW?

The Coronavirus (Scotland) Act 2020 made various changes to the law which impacted upon housing law. A year and a bit after this legislation was enacted we are taking stock of where we are now, and what might change in the coming months.

EVICTION BAN

As previously blogged, a ban on eviction orders being enforced was introduced in Scotland in December 2020. This was linked to the levels system through the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020. These Regulations essentially prevented eviction orders being enforced while local authorities were in level 3 or 4 (they did not prevent eviction orders being granted).

Given that we are now beyond level zero, and the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 have been revoked as of 09 August 2020 there is no longer an eviction ban, and there is no legislation in force which creates an eviction ban. If we were to need to prevent evictions from being enforced again this would require fresh legislation.

REASONABLENESS DEFENCES

When the Coronavirus (Scotland) Act 2020 was initially enacted the changes were due to end on 30 September 2020. This legislation has been extended a number of times, and the changes are now due to end on 31 March 2022.

Before the 2020 Act there were many grounds for eviction for private tenancies which were mandatory: if the Tribunal found that the ground for eviction was made out there was no way for the tenant to avoid eviction. The 2020 Act introduced a reasonableness test, which means that the Tribunal must not only find that the landlord has a ground for eviction, but also that it is reasonable for the eviction order to be granted. Interestingly this also applies to the situation where a notice to quit and a valid notice in terms of Section 33(1)(d) of the Housing (Scotland) Act 1988 has been served. This was generally known as a “no fault” eviction, and was available where the tenancy was a short assured tenancy. The landlord must also now prove that it is reasonable for the eviction order to be granted.

Precisely how the Housing and Property Chamber will treat discretionary grounds for eviction remains to be seen: from what we have seen there are few cases going through the Tribunal that are defended, or which are defended where a solicitor is instructed.

NOTICE PERIODS

The 2020 Act meant that for many grounds for eviction for private and social tenancies the notice period was significantly increased. However, the situation with notice periods is slightly more complex than reasonableness defences, as the law changed in relation to these in October 2020.

The law in relation to notices periods is really quite complex, but in brief if the notice was served before 03 October 2020:

• 28 days notice if the tenant is alleged to not be occupying the property as their only or principal home
• 3 months if:
  • the landlord intends to live in the let property
  • a member of the landlord’s family intends to live in the let property,
  • the tenant has a relevant conviction
  • the tenant has engaged in relevant anti-social behaviour
  • the tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour
  • the landlord is not registered by the relevant local authority under the Antisocial Behaviour etc. (Scotland) Act 2004
  • the let property or associated living accommodation is in multiple occupation and not licensed under Part 5 of the Housing (Scotland) Act 2006
• 6 months if the ground is not mentioned in either of the above headings

However, if the notice was served on or after 03 October 2020, the following time periods apply:

• 28 days if
  • the tenant is not occupying the let property as the tenant’s home
  • the tenant has a relevant conviction
  • the tenant has engaged in relevant anti-social behaviour
  • the tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour
• 3 months if
  • the landlord intends to live in the let property,
  • a member of the landlord’s family intends to live in the let property,
  • the landlord is not registered by the relevant local authority under the Antisocial Behaviour etc. (Scotland) Act 2004,
  • the let property or associated living accommodation is in multiple occupation and not licensed under Part 5 of the Housing (Scotland) Act 2006
• 6 months if none of the grounds above apply

If there are multiple grounds being used the longest applicable notice period will apply. The above are lifted from the changes in relation to private residential tenancies. Similar rules apply for other private tenancies.

For example, previously if a landlord of a tenant of a private residential tenancy wanted to evict them on the basis of being in rent arrears for three months or more they would have required to serve a notice giving 28 days. While the 2020 Act remains in force this is changed to six months.

Additionally this change to the notice period applies in relation to when the notice is served, not when it expires. As such the legislation would apply to a notice served on 30 March 2022, even though the law is set to expire on 31 March 2022. A landlord serving a notice on 30 March 2022 would require to give a tenant six months’ notice where the ground used is rent arrears, whereas a landlord serving a notice on 01 April 2022 would be required give just 28 days’ notice (provided there is no further extension of the longer notice periods).

PRE-ACTION REQUIREMENTS

Pre-action requirements have been a feature of both evictions from social tenancies and for mortgage repossession actions for some time. However, until the coronavirus pandemic they were unknown to private tenancies.

The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 create pre-action requirements for rent arrears eviction actions for assured tenancies and private residential tenancies.

In brief these require that the landlord:

• To provide the tenant with clear information relating to:
  • the terms of the tenancy agreement
  • the amount of rent for which the tenant is in arrears
  • the tenant’s rights in relation to proceedings for eviction (including the pre-action requirements set out in this regulation), and
  • how the tenant may access information and advice on financial support and debt management.
• The landlord requires to make reasonable efforts to agree a reasonable payment plan with the tenant for the future payment of rent and for the rent arrears.
• The landlord need to give reasonable consideration to:
  • any steps being taken by the tenant which may affect the ability of the tenant to make payment to the landlord of the rent for which the tenant is in arrears within a reasonable time
  • the extent to which the tenant has complied with the terms of any plan agreed for payment of the rent and arrears
  • any changes to the tenant’s circumstances which are likely to impact on the extent to which the tenant complies with the terms of a payment plan

These are less onerous than the requirements of a social landlord or a local authority where the ground is rent arrears, but do represent a significant change for private landlords who will not have needed to consider action before serving a notice to quit.

However there is a significant difference between pre-action requirements for social tenancies, and those for private tenancies during the pandemic. While a notice of proceedings in terms of the Housing (Scotland) Act 2001 must specify how the landlord considers they have complied with the pre-action requirements, this is not the case for private tenancies. In private tenancies compliance with the pre-action requirements are only relevant when considering whether it is reasonable for an eviction order to be granted. As such the  First-tier Tribunal must consider the extent to which the landlord has complied with pre-action requirements before applying for the eviction order, but failure to comply does not necessarily mean that the eviction order will not be granted.

These Regulations expire on the same day as Schedule 1 of the Coronavirus (Scotland) Act 2020, or in other words on the same day as the extension of the notice periods and the change of grounds from being mandatory to discretionary.

WHERE NEXT?

It seems unlikely, unless a further lockdown is required, that another ban on evictions being enforced will be brought in. Fresh legislation would be required for this. It also looks like we will have extended notice periods, pre-action requirements and reasonableness tests until the end of March 2022. As such unless the course of the pandemic changes significantly it is likely that these are the extent of the protections for tenants, and if we are through the worst of the pandemic these additional protections may be removed. There may be a case to be made for some of these changes to be maintained after the pandemic: the extent of the mandatory grounds in private tenancies seems harsh from a tenant’s perspective, and it would seem sensible to try to keep people in properties and make payment arrangements for arrears rather than rendering them homeless. This is a debate that we need to have in the coming months.

However, in the meantime, the coronavirus legislation has made an already complicated area of law even more complex, and it is difficult for tenants to know what their rights are when the legislation is so complicated. Anyone receiving a notice to leave, notice to quit or a notice of proceedings, or court or tribunal papers, ought to seek advice to ensure they understand their rights and options. Our solicitors are available to assist, just call 0141 353 3354 to set up an appointment. We are still predominantly doing telephone appointments but can arrange face to face appointments where these are really necessary.

Rona Macleod
Solicitor/Associate
LSA