The Scottish Government is currently introducing a bill to protect the rights of tenants during the current cost of living crisis. However, some argue that the bill does not offer any real protection to tenants and fails to deal with the real problem at hand, lack of housing stock across Scotland.


The bill proposes to freeze all rent increases from 06 September 2022 for a period of 6 months, with the possibility of extending the period, if the Government think that’s warranted. Landlords can raise rent if they can prove they are suffering financial hardship, and any increase will need to be approved by a rent officer, with the relevant local authority.


A second element of the bill prevents landlords from acting on an eviction order for at least six months. Landlords can still issue notice to tenants throughout this period, but if the tenant fails to leave, the landlord will have to raise an eviction order against the tenant. This would be unenforceable whilst the ban remains in place, or for a maximum period of six months, if the ban is extended after March 2023.


Overall, this new legislation hasn’t been well received.Its thought that more properties will come off the market as a result, further exacerbating the housing shortfall in Scotland.


The COVID Recovery and Reform Bill: discretionary eviction grounds for rental properties


The Scottish Government also introduced the Coronavirus (Recovery and Reform) (Scotland) Bill to the Parliament. The proposed legislation hoped to extend some temporary public service reforms implemented during the pandemic.


There were meetings, debates, votes and rounds of amendments. And after months of scrutiny, the Criminal Justice Committee passed the Bill on 28 June, and it became an Act on 10 August.


How will the COVID Recovery and Reform bill affect the Private Rental Sector?


Part 4 of the Recovery and Reform Act, which starts at the bottom of page 40 for those looking to read first-hand, deals with tenancies. More specifically, discretionary eviction grounds in private rental tenancies.


In an overview of the Act on the Scottish Parliament’s website, it states that the main legislative change tenants and landlords should note is that “a tribunal will not have to automatically evict people.” Unlike before, when there was less flexibility in the decision-making process.


However, the overview continues that the tribunal will “still be able to grant an eviction if it considers it reasonable.”


Changes to underpinning renting legislation


Digging a little deeper into the Tenancies section reveals the Government sought to effect these reforms by amending language in the Private Housing (Tenancies) (Scotland) Act 2016, legislation that underpins the Act.


In many cases, the word ‘must’ is either removed completely or replaced by ‘may’. This subtle linguistic change has much significance. First-tier tribunals now no longer must evict residents if a landlord has taken action to remove them. But they may, provided the tribunal sees the grounds for removal as reasonable.


Good habits for landlords: the ‘pre-action protocol’


The Recovery and Reform Act also sets out what it calls the “pre-action protocol”. This instructs landlords in actions they can follow before starting eviction proceedings. Actions that will help their chances of successful eviction in instances of rent arrears.


The tribunal will consider whether or not a landlord has followed these actions when deciding the reasonableness of the eviction grounds.


Actions include providing clear information to the tenant. The amount of rent arrears, for instance, but also details of tenants’ rights in eviction proceedings. They must direct tenants to advice and information they can draw on, too.


Landlords must also make a serious attempt to agree on a payment plan for late and future rent. Finally, they must consider any change of circumstances for their tenant, as well as steps the tenant might have taken to resolve the present circumstances.


Enhanced security for tenants


Some might fear making these temporary reforms permanent could make landlords more reticent to let their properties. With the legislation moving from ‘mandatory’ to ‘discretionary’, perhaps those worries aren’t completely unfounded.


But provided landlords follow the clear protocol in place, they should find they aren’t losing too much legal leverage. Besides, greater protections for residents can only be a good thing for the market. With their rights better attended to, renters will be more confident to let private property.


For any further information about how the legislation affects you, please get in touch.