The Scottish Government has passed the Coronavirus (Scotland) Act 2020 to protect tenants from eviction during the current pandemic. The 2020 Act revises the eviction procedures for tenancies in the private and social rented sector. This article looks solely at Short Assured Tenancies (SAT) and Private Residential Tenancies (PRT) – the two most common tenancy contracts in Scotland.
The 2020 Act is a temporary measure, initially to apply during the period 7 April 2020 to 30 September 2020, with an option of two further six-month extensions.
The key change in the legislation is removing the mandatory element of any Ground or Notice to Quit and replacing it with a discretionary decision based on the circumstances of the case.
The second change is extending the notice period required to bring a tenancy to a close.
This is true when serving a Notice to Leave (PRT) or an AT6 (SAT). The AT6 is the notice under Section 19 of the Housing (Scotland) Act 1988 telling a tenant of a landlord’s intention to raise proceedings for possession with the First-tier Tribunal for Scotland (Housing and Property Chamber) in Glasgow.
For SATs the ‘no fault’ mandatory option of closing a tenancy by serving a Notice to Quit and Schedule 33 Notice on a two-month notice period, extends to six months. This extension also applies to Ground 8 (3 months rent arrears at the date of service and the same at the date of the Tribunal Hearing) in extending the AT6 notice period to 6 months.
This is also true for the mandatory Grounds for possession under a PRT. In particular Ground 1, selling the property and Ground 12, rent arrears (where the tenant is in rent arrears for three months and one month in arrears at the time of the Tribunal hearing). Both are now discretionary Grounds.
The notice period for serving a Notice to Leave for previous mandatory arrears grounds have increased from 28 days to six months.
Both the AT6 and Notice to Leave have been revised to reflect the terms of the 2020 Act. The new forms can be downloaded from the Scottish Government. The revised AT6 is Here… and the revised Notice to Leave is Here…..
Landlords are now in the invidious position of no mandatory option to evict a tenant breaching the terms of their contract, while the 2020 Act is in place.
Some Grounds have lesser increases and the full list of notice periods for a PRT and SAT are found at the end of this article.
When does Temporary end?
The First-tier Tribunal for Scotland (Housing and Property Chamber) has suspended hearings for repossessions until the 28th May 2020. This date maybe delayed further should the Scottish Government so wish.
Application to the Tribunal for repossession can be sent digitally in anticipation of Hearing and Case Meetings becoming active again. Whatever happens, there will undoubtedly be a major backlog of cases to be heard once the Tribunal hearings sit again.
There is also the possibility of the initial six-month term being extended by a further six or even twelve months.
Alternatively, the 2020 Act could be repealed in September.
Both the AT6 and Notice to Quit are Prescribed Notices. The Association of Residential Lettings Agents (ARLA) have suggested issuing both the current revised Notices and the pre-COVID revision Notices at the same time when the lesser notice period crosses over the review deadline. Thus, were the 2020 Act to be repealed the old-style Notice will become legitimate again.
On reflection I don’t accept serving two different notices at the same time to be advantageous. This is because the 2020 Act changes apply to any notice served on a tenant while the temporary legislation is in force. If a notice was served with a shorter notice period than that 2020 Act requires, the following part of the Act would override it:
10(1) Where a notice to which this paragraph applies is completed without taking proper account of paragraphs 1 to 9—
(a) the notice is not invalid by reason of that error, but
(b) it may not be relied upon by the landlord for the purpose of seeking an order for possession (however described) until the date on which it could have been relied upon had it been correctly completed.
Following the right procedures and issuing correct documentation in these uncertain times is indeed stressful.
I am not a lawyer and I would advise any landlord looking at eviction to seek sound legal advice. Unfortunately, even legal professionals can make mistakes so best ask around or talk those already presenting to the Tribunal.
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