Possession of houses within the private rented sector (PRS) can only be obtained on certain specified grounds, which are set out in the legislation governing each type of lease (regulated tenancies, assured and short assured tenancies and private residential tenancies). The Coronavirus (Scotland) Act 2020 (2020 Act) makes changes that will affect landlords who seek possession of dwellinghouses during the COVID 19 pandemic. The changes are due to end on 30 September 2020 although the Scottish Government may, by regulation, extend the period during which they apply to 31 March 2021 and again to 30 September 2021, or bring the provisions to an end earlier.
Private Residential Tenancies (PRTs)
The grounds on which a landlord can obtain possession of a house let under a PRT are detailed in the Private Housing (Tenancies) Scotland Act 2016 (2016 Act). Previously, in some of these grounds, a landlord had an absolute right to obtain an order for possession, provided the conditions were met. Now, all grounds on which a landlord can seek possession of a PRT (including for arrears of rent) are discretionary. In other words, the First Tier Tribunal (FTT) (to whom applications for possession must be made) no longer has to grant an order for possession, but may grant an order if they are satisfied that it is reasonable to do so, based on the information available.
As well as making the grounds for possession discretionary, notice periods have been extended and landlords should therefore check carefully the length of notice required.
Assured and Short Assured Tenancies
The Housing (Scotland) Act 1988 (1988 Act) sets out (in Schedule5) various grounds on which a landlord can apply for possession of a property let under an assured or short assured tenancy. If one of the grounds in Part1 of Schedule5 applies, a landlord would normally be entitled to possession i.e. the FTT would have no discretion but would be obliged to issue an order for eviction. The 2020 Act changes this and makes all grounds discretionary. The FTT cannot make an order for possession unless it considers it reasonable to do so. This includes situations where the landlord is seeking possession for arrears of rent (Ground 8 in Part I of Schedule 5).
The notice periods for obtaining possession have also been changed so check carefully what notice needs to be given if an assured or short assured tenancy is being brought to an end on Schedule 5 grounds.
For terminating a short assured tenancy at its end date, a landlord is no longer automatically entitled to possession upon following the correct procedures (at the beginning and end of the tenancy) but will now only be granted possession if the FTT considers it reasonable to do so. In addition, the period for the section 33(1)(d) notice, advising that the landlord requires possession of the property, has been extended from two to six months.
The eviction grounds for regulated tenancies have, also, all been made discretionary. In other words, a landlord can only obtain an order for possession if the FTT considers it reasonable to grant the order. The FTT may also adjourn any proceedings, suspend the execution of an order for possession and/or postpone the date of possession.
Similar to PRTs and assured and short assured tenancies, the notice periods for obtaining possession have been extended. Notices for possession of houses let under regulated tenancies must now also state the basis on which the landlord is seeking possession of the house. Seek legal advice to make sure that these notices are correct.
Note that the details above relate to leases where rent is paid and do not address licences to occupy, including service occupancies.