Certainty for landlords on right to recover property not unreasonable

Legislation which afforded tenants security while giving landlords comfort, will be replaced by law which gives little certainty to either, writes Niall Stringer

The early stages of the pandemic saw the Scottish Government introduce numerous protective measures in relation to residential tenancies to help those renting to retain their homes.

These included extended notice periods, removing a landlord’s mandatory grounds for recovery of possession and the introduction of a pre-action protocol requiring landlords to write to tenants with rent arrears before Tribunal proceedings can be raised. Although it was anticipated the law would revert to its pre-pandemic state at the end of March 2022, frustratingly for some it hasn’t. There are a number of potential consequences arising from proposed changes in tenancy legislation as a result.

Although the Government has allowed certain protective measures to expire including extended periods for residential tenancy notices, all grounds for land lords to recover possession remain discretionaryif the matter goes before the First Tier Tribunal (Housing and Property Chamber). The intention to make this change permanent is supported by the Coronavirus (Recovery and Reform)(scotland) Bill, currently at Stage 1 of the Scottish Parliamentary process.

The Bill proposes the abolition of mandatory grounds for recovery of a let property. Before the 2020 Act, land lords were certain to be able to recover vacant possession in certain circumstances. For example, at the end of a short assured tenancy (SAT) or where there were more than three months rent arrears, and for a Private Residential Tenancy (PRT) if the landlord wished to sell, live in the property, or where there were arrears for more than three consecutive months.

Where a landlord wishes to recover vacant possession of a let residential property and the tenant does not leave voluntarily following service of the required notices, proceedings will be necessary in the Tribunal. The test for SATS is that it is “reasonable to make an order for possession”, and for PRTS that it is“reasonable to issue an eviction order on account of those facts”. In rent arrears cases, the Tribunal must consider the extent to which the pre-action protocols have been complied with by the landlord.

It appears that changes to tenancieswill apply to all existing sats. if so, legislation which afforded tenants security of tenure for agreed periods of time while giving landlords the comfort that they could recovery the property at the end of the te nancy, will be replaced by legislation which gives little certainty to either party.

While changes may be introduced to the Bill, it seems certain that there will be significant permanent changes made to the law governing SAT Sand PRTS which will make it harder to obtain vacant possession. Against that, while the Tribunal is generally viewed as a tenant friendly forum, we understand that, even though all grounds for recovery are discretionary, less than 2 per cent of eviction applications in the last year have been refused on the test of reasonableness. Perhaps most landlords are reasonable, only seeking to take the most extreme action when there is no other recourse.

Just as the right to have a safe home is a basic and undeniable right, The right to a tenant to have some form of security is also essential. The introduction of the SAT saw an enormous rise in residential letting; co incidence or reflective of legislation which tried to balance the needs of tenants and land lords.

There is perhaps irony and tension in the proposed legislation in that, if it is seen as being so skewed for the benefit of one side, it could end up causing the very asset which is helping address the housing crisis being lost to the rental market as private landlords sell up. Is it really too much to have a contract which would ensure that in certain defined circumstances, a landlord could recover their property, such as on a sale? Some certainty for landlords on the right to recover their property does not seem unreasonable.

Niall Stringer is a Land & Property Partner, Turcan Connell