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The Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No. 3, Amendment, Saving Provision and Revocation) Regulations 2017

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These Regulations supersede S.S.I. 2017/293 and are being issued free of charge to all known recipients of that instrument.

Scottish Statutory Instruments

2017 No. 346 (C. 26)

Housing

The Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No. 3, Amendment, Saving Provision and Revocation) Regulations 2017

Made

24th October 2017

Laid before the Scottish Parliament

26th October 2017

Coming into force

1st December 2017

The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 79(2), (3) and (4) of the Private Housing (Tenancies) (Scotland) Act 2016(1) and all other powers enabling them to do so.

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No. 3, Amendment, Saving Provision and Revocation) Regulations 2017 and come into force on 1st December 2017.

(2) In these Regulations—

“the 1988 Act” means the Housing (Scotland) Act 1988(2); and

“the 2016 Act” means the Private Housing (Tenancies) (Scotland) Act 2016.

Appointed day

2.—(1) Subject to paragraph (2), the day appointed for the coming into force of the provisions of the 2016 Act specified in column 1 of the table in the schedule (the subject matter of which is specified in column 2 of that table) is 1st December 2017.

(2) Where a purpose is specified in column 3 of the table in the schedule in relation to any provision, that provision comes into force in accordance with paragraph (1) for that purpose only.

Amendment of the Rent (Scotland) Act 1984

3.—(1) The Rent (Scotland) Act 1984(3) is amended in accordance with paragraph (2).

(2) In section 3B(1)(a)(4) for “the day that section 1 of the Private Housing (Tenancies) (Scotland) Act 2016 comes into force” substitute “1 December 2017”.

Amendment of the Housing (Scotland) Act 1988

4.—(1) The 1988 Act is amended in accordance with paragraphs (2) and (3).

(2) In section 12(1A)(5) for “the day that section 1 of the Private Housing (Tenancies) (Scotland) Act 2016 comes into force” substitute “1 December 2017”.

(3) In section 31A(1)(a)(6) for “the day that section 1 of the Private Housing (Tenancies) (Scotland) Act 2016 comes into force” substitute “1 December 2017”.

Amendment of the Private Housing (Tenancies) (Scotland) Act 2016

5.—(1) The 2016 Act is amended in accordance with paragraph (2).

(2) Section 8(5) is repealed.

Saving provision

6.  Despite the amendments made by section 75 and paragraphs 1, 2 and 3 of schedule 5 of the 2016 Act, sections 12, 32(7) and 33(8) of the 1988 Act have effect on and after 1st December 2017 as they had effect immediately before that date but only in relation to—

(a)a short assured tenancy (within the meaning given in section 32(1) of the 1988 Act) which was created before 1st December 2017 and continues in existence on that date;

(b)a new contractual tenancy (within the meaning given in section 32(3)(b) of the 1988 Act) which came into being before 1st December 2017 and continues in existence on that date; and

(c)a new contractual tenancy (within the meaning given in section 32(3)(b) of the 1988 Act) which comes into being on or after 1st December 2017 at the ish of a short assured tenancy which is a short assured tenancy in a case mentioned in paragraph (a) or (b).

Revocation

7.  The Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No. 2 and Saving Provision) Regulations 2017(9) are revoked.

KEVIN STEWART

Authorised to sign by the Scottish Ministers

St Andrew’s House,

Edinburgh

24th October 2017

Regulation 2

SCHEDULEPROVISIONS OF THE 2016 ACT COMING INTO FORCE ON 1st DECEMBER 2017

Column 1

Provision of the 2016 Act

Column 2

Subject matter

Column 3

Purpose

Section 1Meaning of private residential tenancy
Section 2Interpretation of section 1 (of the 2016 Act)
Section 3Writing not required to constitute private residential tenancy
Section 4Extended meaning of tenancy in the 2016 Act
Section 5Extended meaning of tenancy and related expressions in other enactments
Section 6Power to modify schedule 1
Section 7Statutory terms of tenancyInsofar as not already in force
Section 9Protection of terms allowing use of shared living accommodation
Section 10Duty to provide written terms of tenancy
Section 13Prohibition on charging for information
Section 14Application to First-tier Tribunal to draw up terms
Section 15First-tier Tribunal’s power to draw up terms
Section 16First-tier Tribunal’s power to sanction failure to provide information
Section 17Meaning of notice period in sections 14 and 16 (of the 2016 Act)Insofar as not already in force
Section 18Method by which rent may be increased
Section 19Frequency with which rent may be increased
Section 20No premiums, advance payments, etc.
Section 21Restriction on diligence
Section 22Landlord’s power to increase rentInsofar as not already in force
Section 23Modification of rent-increase notice by parties
Section 24Tenant’s right to refer increase to rent officerInsofar as not already in force
Section 25Rent officer’s power to set rent
Section 26Rent officer’s duty to issue provisional order
Section 27Rent officer’s power to correct final order
Section 28Right of appeal to First-tier Tribunal
Section 29First-tier Tribunal’s power to set rent
Section 30Finality of First-tier Tribunal’s decision
Section 31Liability of over or under paid rent
Section 32Determination of open market rent
Section 33Withdrawal of referral or appeal
Section 34(1)Duty to make information available
Section 35Request by local authority that a zone be designated
Section 36Scottish Ministers’ duty to react to request
Section 37Power to designate a zone
Section 38Restriction on rent increases within a zone
Section 39Limits on power to designate a zone
Section 40Procedure for designating a zone: consultation and information
Section 41Power to change inflation index
Section 42Rent officer’s power to allow rent rise in consequence of improvement
Section 43Further provision about making and determining an application under section 42 (of the 2016 Act)Insofar as not already in force
Section 44No termination by parties except in accordance with Part 5 of the 2016 Act
Section 45Landlord’s interest transfers with ownership of property
Section 46Protection for sub-tenants
Section 47Qualification of sub-tenant protection
Section 48Tenant’s ability to bring tenancy to an end
Section 49Requirements for notice to be given by tenant
Section 50Termination by notice to leave and tenant leaving
Section 51First-tier Tribunal’s power to issue an eviction order
Section 52Applications for eviction orders and consideration of them
Section 53First-tier Tribunal’s power to disapply protection for sub-tenants
Section 54Restriction on applying during the notice period
Section 55Restriction on applying 6 months after the notice period expires
Section 56Restriction on applying without notifying local authority
Section 57Wrongful termination by eviction order
Section 58Wrongful termination without eviction order
Section 59Wrongful-termination order
Section 60Notice to local authority of wrongful-termination order
Section 61(Requirements of) Sub-tenancy notice to leaveInsofar as not already in force
Section 62Requirements of notice to leave and stated eviction groundInsofar as not already in force
Section 63Landlord includes lender in some cases
Section 64Six month periods
Section 65Termination of tenancy on tenant’s death
Section 66Termination of joint tenant’s interest on death
Section 67Partner’s entitlement to inherit
Section 68Other family member’s entitlement to inherit
Section 69Carer’s entitlement to inherit
Section 70Interpretation of Part 6 of the 2016 Act
Section 71First-tier Tribunal’s jurisdiction
Section 72First-tier Tribunal’s duty to report unregistered landlords
Section 73Minor errors in documents
Section 74Consequential modificationsFor the purpose of commencing paragraphs 1 to 4 and 6 to 11 of schedule 4
Section 75Transitional provision
Schedule 1Tenancies which cannot be private residential tenancies
Schedule 3Eviction grounds
Schedule 4, paragraphs 1 to 4 and 6 to 11Consequential modifications
Schedule 5Transition from regimes under earlier enactments

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations bring into force certain provisions of the Private Housing (Tenancies) (Scotland) Act 2016 (“the 2016 Act”).

Regulation 2(1) and the schedule bring into force, on 1st December 2017, sections 1 to 6, 9 and 10, 13 to 16, 18 to 21, 23, 25 to 33, 34(1), 35 to 42, 44 to 60 and 63 to 75. Sections 7, 17, 22, 24, 43, 61 and 62 are commenced insofar as not already in force. Schedules 1, 3 and 5 are commenced. Schedule 4 is commenced under exception of paragraph 5. Paragraph 5 is not being commenced as it is a consequential amendment to section 130B of the Social Security Contributions and Benefits Act 1992 (which ceased to have effect on 1st April 2013) which is not required.

Regulations 3 and 4 amend section 3B(1)(a) of the Rent (Scotland) Act 1984 and sections 12(1A) and 31A(1)(a) of the Housing (Scotland) Act 1988 respectively, so that instead of referring to the day on which section 1 of the 2016 Act comes into force, those provisions specify 1st December 2017 (which is the day on which that section comes into force by virtue of these Regulations). In addition, regulation 5 repeals section 8(5) of the 2016 Act. Section 8(5) is a transitional provision relating to consultation during the period prior to section 1 coming into force.

Regulation 6 is a saving provision in relation to short assured tenancies which have been entered into prior to 1st December 2017 and, in certain circumstances, entered into on or after 1st December 2017.

Regulation 7 revokes the Private Housing (Tenancies) (Scotland) Act 2016 (Commencement No. 2 and Saving Provision) Regulations 2017, which would have commenced the provisions of the 2016 Act being commenced by these Regulations on the same basis as these Regulations but which did not include provision made by regulations 3, 4 and 5. The Bill for the 2016 Act received Royal Assent on 22nd April 2016. Section 79(1) of the 2016 Act brought into force sections 76 to 80 on the following day.

NOTE AS TO EARLIER COMMENCEMENT REGULATIONS

(This note is not part of the Regulations)

The following provisions of the Private Housing (Tenancies) (Scotland) Act 2016 have been brought into force by commencement regulations made before the date of these Regulations.

ProvisionDate of CommencementInstrument No.
Section 7 (partially)31st October 2016S.S.I. 2016/298
Section 831st October 2016S.S.I. 2016/298
Section 1131st October 2016S.S.I. 2016/298
Section 1231st October 2016S.S.I. 2016/298
Section 17 (partially)31st October 2016S.S.I. 2016/298
Section 22 (partially)31st October 2016S.S.I. 2016/298
Section 24 (partially)31st October 2016S.S.I. 2016/298
Section 34(2)31st October 2016S.S.I. 2016/298
Section 43 (partially)31st October 2016S.S.I. 2016/298
Section 61 (partially)31st October 2016S.S.I. 2016/298
Section 62 (partially)31st October 2016S.S.I. 2016/298
Schedule 231st October 2016S.S.I. 2016/298
(4)

Section 3B is inserted by paragraph 4 of schedule 5 of the Private Housing (Tenancies) (Scotland) Act 2016 (“the 2016 Act”). Paragraph 4 of schedule 5 of the 2016 Act comes into force on 1st December 2017 by virtue of these Regulations.

(5)

Section 12(1A) is inserted by paragraph 1(3) of schedule 5 of the 2016 Act. Section 12 is further amended by paragraphs 1(2) and 3(2) of schedule 5 of the 2016 Act. Paragraphs 1(2) and (3) and 3 of schedule 5 of the 2016 Act come into force on 1st December 2017 by virtue of these Regulations.

(6)

Section 31A is inserted by paragraph 5 of schedule 5 of the 2016 Act. Paragraph 5 of schedule 5 of the 2016 Act comes into force on 1st December 2017 by virtue of these Regulations.

(7)

Section 32 is amended by paragraph 2(2) of schedule 5 of the 2016 Act. Paragraph 2(2) of schedule 5 of the 2016 Act comes into force on 1st December 2017 by virtue of these Regulations.

(8)

Section 33 was previously amended by section 34 of the Private Rented Housing (Scotland) Act 2011 (asp 14) and paragraph 44 of schedule 1 of the Housing (Scotland) Act 2014 (asp 14). The amendment made by paragraph 44 of schedule 1 of that Act comes into force on 1st December 2017 by virtue of S.S.I. 2017/330. Section 33 is further amended by paragraph 2(3) of schedule 5 of the 2016 Act. Paragraph 2(3) of schedule 5 of the 2016 Act comes into force on 1st December 2017 by virtue of these Regulations.

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