The Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations (the "Regulations") come into force on 29 March 2022.
The Regulations return the notice period to be given to a commercial tenant before a landlord may terminate a lease for non-payment of rent or other sums due from 14 weeks to 14 days.
Pre-irritancy warning notices served before 29 March 2022 will still be bound by the 14 weeks' time limit. If, for example, a notice still has 8 weeks left to run, a landlord will not be able to terminate until those 8 weeks have expired. It may be that landlords in this position will instruct new warning notices to be served after 29 March 2022, giving only 14 days' notice (assuming the arrears are still o/s). Care should be taken if doing so, as issuing two notices for the same arrears with different timescales for payment could end up invalidating both notices.
While the Regulations represent a welcome change for commercial landlords, there is still a careful procedure to be followed when seeking to irritate a lease. Once the 14 day period has lapsed, with no payment being made, it is necessary to serve a termination notice on the tenant to formally terminate the lease. Both the pre-irritancy notice and termination notice must also include certain details to comply with statutory requirements. Should court proceedings become necessary to recover possession, an eviction order will not be granted unless the notice requirements have been complied with in full.
Landlords should also bear in mind that if the notice period in the lease is longer than the statutory minimum of 14 days, the lease provisions will prevail.
To discuss any of the issues raised in this article in more detail, please contact your usual Brodies contact or a member of our real estate disputes team.
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