02 October 2020

The Coronavirus (Scotland) Act 2020 (Eviction from Dwelling-houses) (Notice Periods) Modification Regulations 2020 (“the Regulations”)

The Coronavirus (Scotland) Act 2020 (“the 2020 Act”) has presented significant challenges for landlords. In particular, the notice period required to be given to tenants (before an application could be made to the Housing and Property Tribunal, or before an action could be raised at the Sheriff Court) was extended to 3 months where the grounds for eviction were in respect of criminal or antisocial behaviour. This was clearly a headache for landlords who have duties to their tenants, their properties and the wider community, to deal with such behaviour from misbehaving tenants.

Against this background landlords may welcome the new Regulations which shorten the notice periods required in terms of grounds of eviction which relate to criminal convictions and anti-social behaviour.

The Regulations

The Regulations have been approved by Parliament and will come into force on 3 October 2020. The changes are referred to a “regrouping of notice periods”. The terms of the regulations are much the same for Private Residential Tenancies, Assured Tenancies, Tenancies under the Rent (Scotland) Act 1984 and Scottish Secure Tenancies.

Notices served before 3 October 2020 will still require to give 3 months’ notice of the landlord’s intention to raise proceedings to evict the tenant. Any notices served on or after 3 October 2020, where the sole ground or reason for the intended eviction is due to criminal convictions or antisocial behaviour, will be subject to the changes made by the Regulations and the period of notice will now be at least 28 days. This brings these types of grounds back in line with the pre-2020 Act practice, where 28 days clear notice was given, in line with the “ish” date. Please note that if there are combined grounds (such as rent arrears) also included in the Notice of Proceedings, then the longer six months’ notice period should still be used.

Private Residential Tenancies

Regulation 3 changes the notice period applicable in respect of Private Residential Tenancies. Any notices served on or after 3 October 2020 will now be changed from three months to 28 days in respect of the following grounds:

(i) that the tenant has a relevant conviction,
(ii) that the tenant has engaged in relevant anti-social behaviour, and
(iii) that the tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour.

These grounds are now in the same grouping as the ground that the tenant is not occupying the let property as their home (the notice period for this ground was not changed by the 2020 Act). Regulation 7 has made consequential modification of the prescribed form, meaning that the prescribed form used when serving a notice has changed to reflect the changes introduced by the Regulations. Private landlords will therefore need to take care when drafting the notices.

Assured tenancies

Regulation 4 changes the notice period applicable for notices served under s19 of the 1998 Act. The notice period will be 28 days (rather than 3 months) where the notice is in respect of any of the following grounds; conviction for a relevant offence, acting in an anti-social manner or pursued a course of anti-social conduct. Regulation 7 has made consequential modification of the prescribed form, meaning that the AT6 has been changed to incorporate the amendments in notice periods. Again, care should be taken when drafting the notice.

Tenancies under the Rent (Scotland) Act 1984

The notice periods for nuisance, annoyance or conviction for using the house for immoral or illegal purposes will change in respect of any notices served on or after 3 October 2020. The relevant period for that ground (Case 2, Schedule 2 to the 1984 Act) will now be changed from 3 months to 28 days.

Scottish Secure Tenancies

Regulation 6 deals with the changes from 3 October 2020 in respect of Scottish Secure Tenancies. Any notices served on or after 3 October 2020 in respect of grounds 2 (relevant conviction), 7 (antisocial behaviour or harassment) or 8 (nuisance, annoyance or harassment where it is appropriate to move the tenant to alternative accommodation) of schedule 2 of the 2001 Act are now grouped together alongside ground 5 (6 months unoccupancy). This means that the 3 months’ notice period currently in place will now be reduced to 4 weeks’ notice after the date of service.

Conclusion

Landlords may welcome the changes given that their ability to deal with antisocial behaviour of their tenants and those with relevant convictions was previously impacted. The Regulations will remain in place until the 2020 Act expires, or until there are further modifications made. It is clearly a step in the right direction for all types of landlords. It is yet to be seen if there will be a further re-grouping of the notice periods in respect of other grounds for eviction.

Contact

Mark Onorati, Solicitor, mon@bto.co.uk T. 0141 221 8012