New landlord notice regulations relating to Scottish secure tenancies

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Walker Morris partner Louise Power highlights new regulations set to alter various landlord notices relating to secure tenancies in Scotland as from 1 May 2019.

New landlord notices

New regulations altering the form of various statutory landlord notices in Scotland will come into force on 1 May 2019.

By way of background, a tenancy of a house is a “Scottish secure tenancy” if:

  • the house is let as a separate dwelling;
  • the landlord is a local authority landlord; a registered social landlord; or a water/sewerage authority;
  • the tenant is an individual and the house is the tenant’s only or principal home;
  • where the landlord is a registered social landlord which is a co-operative housing association, the tenant is a member of the association; and
  • the tenancy was created on or after such date as the order may specify in relation to the landlord, or it was created before that date and is of a description specified in the order in relation to the landlord.

And a tenancy of a house is a “short Scottish secure tenancy” if:

  • it would have been a Scottish secure tenancy but;
  • it is for a term of not less than 6 months; and
  • before its creation, the prospective landlord serves on the prospective tenant a notice.

The three new sets of regulations altering the forms of various notices in relation to Scottish secure tenancies are as follows.

Firstly, the Short Scottish Secure Tenancies (Notice) Regulations 2018 (SSI 2018/154) will prescribe the form of notice to be used by a prospective landlord when notifying a prospective tenant that the tenancy offered is a short Scottish secure tenancy. The notice will specify the grounds for granting a short Scottish secure tenancy, as well as the term of the tenancy.

Whilst the form of the notice itself remains substantially the same under the new SSI 2018/154, the explanatory notes to the prospective tenant which are appended to the notice have been expanded in the new version. For example, the new notes include a list of contacts in case the prospective tenant should have any questions, plus the terms and conditions of a short Scottish secure tenancy are set out in full.

Secondly, the Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2018 (SSI 2018/155) will prescribe the form of notice to be used by a social landlord when notifying a tenant that it intends to apply to the Sheriff court for an order to evict the tenant and will set out the time limits within which the landlord is permitted to commence possession proceedings.

Under SSI 2018/155, the new form of notice requires a landlord seeking recovery of possession to outline both its reasons for doing so and the obligations of the tenancy it considers the tenant to have broken. The landlord is also required to specify the earliest date at which proceedings will be raised, as defined under s.36 of Housing (Scotland) Act 2001 (the Act).  Again, as with the new SSI 2018/154, the new notice and notes also provide the tenant with a list of contacts in case it should be uncertain of its rights or of what the notice means.

Finally, the Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Amendment Regulations 2018 (SSI 2018/156) will amend the form of notice to be used by a social landlord when notifying a tenant and any qualifying occupier under a Scottish secure tenancy that the landlord may raise proceedings in court to repossess the house.  SSI 2018/156 will also amend the guidance notes to provide an explanation of the court process in cases where a streamlined eviction process is used; and will provide that the court no longer has to consider whether it is reasonable to make an order for eviction in cases where the landlord has a ground for recovery of possession set out.

SSI 2018/156 provides that the new notes are much more in depth: setting out the process to which the landlord must adhere in order to make an application for a possession order and the criteria which the Sheriff must take into account before making such an order; and outlining the relevant provisions of the Act.

WM Comment

Ultimately, the changes made under the three new SSIs mean that the notices themselves are more prescriptive and that they much more clearly set out the process required for recovery of possession. This may be more onerous for landlords/repossessing heritable creditors and, in some cases, it may require them to give more close thought and attention, pre-emptively, to the grounds on which they seek possession and the evidence on which they will be able to rely.

However, the changes are consistent with the widely lauded trend within the industry towards treating customers fairly and it is to be hoped that the changes will result in greater clarity and certainty for both parties. That, in turn, should result in fewer cases hitting the courts, plus improved efficiency in the possession process overall.