‘No-fault’ possession comes to an end in Scotland!

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Time is running out to create your final SATs before 1 December 2017

As of 1st December 2017 no landlord in Scotland will be able to create a new Short Assured Tenancy.

Instead the new default private tenancy will be the Private Residential Tenancy, no doubt from this point on to be known as the ‘PRT’.

The new three letter initialism is but the tip of the Scottish iceberg, as private renting is about to change dramatically thanks to the Scottish Government’s tireless commitment to more and more housing legislation.

The first of the month ushers in two substantive changes of which landlords with property in Scotland need to be aware.

Firstly, Changes to jurisdiction:

On 1 December 20176 the First-tier Tribunal will take over responsibility for civil cases relating to the PRS. This means that possession cases will no-longer be heard by the Sheriff Court.

In the future landlords will apply to the Tribunal (Housing & Property Chamber) for possession orders, for which there will be no charge.

Likewise, tenants who believe they have been evicted illegally, or otherwise prevented from properly enjoying their rights in respect of privately rented accommodation will be able to apply to the First-tier Tribunal.

Cases already underway in the Courts will not be transferred.

For information about applying to the Tribunal visit: https://www.housingandpropertychamber.scot/apply-tribunal

Secondly, the SAT is no-more!

Having dutifully served as default private tenancies since the late 1980s the Assured, and Short Assured Tenancies are to disappear. Or to put is more accurately, no new ATs and SATs may be created from 1 December 2017.

Existing tenancies will be able to run their course, but upon expiry or renewal their replacements will be PRTs. You can download an NLA approved PRT from here from 1 December.

What’s the big deal?

Well that depends on your attitude towards indefinite tenancies, tenants’ rights to surrender, and the loss of no-fault possession.

If you’re stance towards these elements of private-renting is generally laissez-faire, then you can stop reading now.

However, if like the rest of us, you are quite keen on seeing some return on investment you should take note.

The PRT represents a fundamental change of approach for a country in the UK. For the last few decades the norm has been to establish fixed-term tenancies with limited long-term security of tenure, balanced by flexibility of provision.

The Scottish Government has abandoned this principle in favour of tenancies with no-fixed term (i.e. they will run indefinitely) and mechanisms for landlord repossession limited by prescribed grounds.

These grounds grouped into four categories:

  • Property required for another purpose
  • Tenant’s status
  • Tenant’s conduct
  • Legal impediment to let continuing

In total there are 18 grounds for evictions, eight are mandatory meaning that the Tribunal must grant possession.

Eight are discretionary, meaning that the Tribunal must use its own judgment to decide whether to grant an order or not.

Two are ‘mixed’, meaning that they may be mandatory or discretionary depending on the circumstances.

For more information about the grounds see: The NLA’s quick guide

So how long will it take to get possession?

Good question, and the answer depends on the circumstances and grounds relied upon. If an eviction order is sought the landlord must serve either 28 or 84 days’ notice.

If the tenant has been in-situ for not more than six months, or possession is sought on one of the ‘conduct grounds’ – then 28 days’ notice will be sufficient.

If any other circumstances exist, the minimum period will be 84 days’.

OK, so what if the tenant decides to leave?

This is much more straightforward – although perhaps just as unsatisfactory, depending on your perspective.

The Act stipulates that a tenant may bring the tenancy to an end at any time by giving a minimum of 28 days’ notice – unless a longer notice period has been agreed freely between both parties.

And before anyone decides to simply write a longer notice period into their PRT, this has to be done after the tenancy agreement is signed, to ensure no coercion has taken place.

What’s the upside?

Ummm……..

You won’t need to serve anymore AT5 notices. But you won’t have recourse to s33 anyway, so that’s no real gain.

There’s a novel approach to abandonment and calculating rent arrears – but again it hardly balances the scales.

Oh and did I mention ‘Rent Pressure Zones’? ………………………….. More on those next time.

 

2 thoughts on “‘No-fault’ possession comes to an end in Scotland!

  1. I haven’t heard anything about the Tenant Information Pack being updated. Do we still need to issue this, or are the ‘Easy Read Notes’ replacing the pack?

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