Information for Private landlords on the eviction process
The Coronavirus Recovery and Reform (Scotland) Bill was passed by the Scottish Parliament on 28th June 2022. The Act makes permanent the requirement for the tribunal to exercise discretion when deciding whether to grant an eviction and the requirement for landlords to comply with pre-action requirements when evicting a tenant for rent arrears.
The Cost of Living (Tenant Protection) (Scotland) Bill
The Scottish Parliament approved The Cost of Living (Tenant Protection) (Scotland) Bill on 6 October 2022. The purpose of the Bill is to respond to the emergency situation caused by the impact of the cost of living crisis. The Bill introduces;
- A temporary rent freeze
- Moratorium on evictions
- Increased damages for unlawful evictions
The bill will be in force until at least 31 March 2023, there will be an option for the measures to be extended for two further periods of six months with parliamentary approval. The Bill contains provisions that require the measures be reviewed, and reported on every 3 months.
The Bill introduces a rent restriction to existing private residential tenancies, assured and short assured tenancies. The Scottish Ministers are able to set a maximum level of rent increase (rent cap) while the emergency measures are in force. In the period up to 31 March 2023, the will be set at zero to prevent any rent increases, this will be kept under review. Landlords will be able during the time the bill is in force to re-set rent levels between tenancies.
Any rent increase notices which were issues on or after 6 September 2022 will be void. A landlord who seeks to increase the rent after the rent cap rises above zero will be required to issue a new rent increase at that time. Any rent increase notices which were issued prior to the 6 September 2022 will remain valid. The existing rights of tenants to challenge any rent increase and appeal rent increases will be maintained for rent increase notices issues before the 6 September 2022.
The legislation includes safeguards for private landlords allowing them to apply to a Rent Officer (part of Rent Service Scotland) to increase the rent to cover an increase in the preceding six months of prescribes costs, this includes;
- Mortgage interest payments increase
- Landlord insurance increase
- Service charges paid by the landlord increases
The Rent Officer where evidenced may order that a landlord would be able to increase rent by the owner of 50% of the increase of the prescribed costs or 3% of the existing rent level. If the decision of the rent officer is disputed there is a route of appeal for the landlord and tenant to the First Tier Tribunal.
Moratorium on evictions
The Bill contains provisions that will prevent the enforcement element of eviction action for a maximum period of 6 months, unless the emergency legislation itself ceases to be in place before the end of the 6 months. The provisions do not interfere with the landlord's ability to serve notice or to apply to the Tribunal to obtain an Eviction Order.
The Bill includes safeguards to allow eviction in limited circumstances, this includes;
- Anti-social behaviour
- Criminal behaviour
- Abandonment of the let property
- Lenders who intend to sell the property
- Where a landlord intends to sell the property to alleviate financial hardship
- Where a landlord intends to live in the let property to alleviate financial hardship
There is also an safeguard for where there are substantial rent arrears of one or more which equates to or exceeds an amount that is the equivalent of 6 months rent under the tenancy agreement.
Where an Eviction Order was granted before the legislation came into force or where the landlord raised eviction proceedings before the legislation came into force and served an Eviction Notice before the announcement on 6 September 2022, the case will not fall under the moratorium and will still be able to be enforced in line with current legal requirements.
The Bill further contains provisions that change the way in which civil damages can be awarded for unlawful evictions. The damages for unlawful evictions will be increased to a maximum of 36 months worth of rent. The Tribunal has discretion to award a lower amount if appropriate in the circumstances of the case.
If a landlord is found to be pressuring a tenant to leave during the period the legislation is in place it may result in a review of the landlords Fit and Proper Person Status which may result in them no longer being able to act a private landlord.
First Tier Tribunal
A temporary amendment to all private rented sector repossession cases going before the First-Tier Tribunal (Housing and Property Chamber). Prior to the introduction of the Act, grounds were viewed as either mandatory, or discretionary. While the legalisation is in effect, all cases will be considered on a discretionary basis. This ensures the Tribunal is able to garner a detailed understanding of circumstances when determining whether to grant an eviction order. This allows for the individual financial circumstances of the tenant to be considered during this crisis. Grounds for repossession are already considered on a discretionary basis in the social rented sector.
Section 11 Notice
Section 11 of the Homelessness Etc (Scotland) Act 2003 requires landlords and creditors to notify the relevant Local Authority when they raise proceedings for possession or serve certain notices regarding the standard security level. The purpose of this requirement is to ensure that Local Authorities are alerted to households at risk of homelessness due to eviction or repossession at an early stage. You can notify West Lothian Council by completing and sending it to Section11notices@westlothian.gov.uk.
Landlords are required to notify the relevant local authority when they raise proceedings for procession of a dwelling house. It is important to note that the duty does not apply at the point where an AT6, Section 33 or Notice to Leave is served. The duty only applies at the point when a landlord raises proceedings in the First Tier Tribunal.