Coronavirus (Recovery and Reform) (Scotland) Act 2022

Section 43: Private residential tenancies: discretionary eviction grounds

156. This section puts on a permanent footing the temporary changes made by paragraph 1 of schedule 1 of the Coronavirus (Scotland) Act 2020. It amends the Private Housing (Tenancies) (Scotland) Act 2016 (“the 2016 Tenancies Act”) which governs private residential tenancies. The result of this section is that all eviction grounds for such tenancies will become discretionary eviction grounds on a permanent basis.

157. The vast majority of tenancies which have been granted in the private rented sector since the 2016 Tenancies Act came fully into force are private residential tenancies. It is not possible to opt out of the private residential tenancy regime, although there are some tenancies which will not meet the necessary criteria to fall within it. For example, to be a private residential tenancy, the tenant must at some point have occupied the property as their only or main home. In addition, some property types or letting arrangements are excluded, such as designated student accommodation, living with a resident landlord or social housing (see schedule 1 of the 2016 Tenancies Act for a full list of excluded tenancies). Nevertheless, in most cases, the rules on eviction from privately let properties will be governed by the rules in schedule 3 of the 2016 Tenancies Act (read alongside Part 5 of that Act).

158. Prior to the temporary modifications made by the Coronavirus (Scotland) Act 2020, some eviction grounds for private residential tenancies were mandatory and some were discretionary. An eviction ground is referred to as “mandatory” in these notes where, if the First-tier Tribunal finds that the required elements of the landlord’s specified eviction ground apply in a particular case, it is obliged to issue an order evicting the tenant (subject to any other prerequisites being satisfied, such as any notice requirements having been fulfilled). An eviction ground is referred to as “discretionary” in these notes where, upon deciding that the specified eviction ground applies, the Tribunal is simply empowered (rather than required) to issue an eviction order and has to consider whether it would be reasonable to do so.

159. The eviction grounds which are changed from mandatory to discretionary on a permanent basis under this section are as follows—

• the landlord intends to sell the property (paragraph 1 of schedule 3 of the 2016 Tenancies Act),

• the property is to be sold by the lender under a heritable security (paragraph 2 of schedule 3),

• the landlord intends to refurbish and it would be impracticable for the tenant to continue to occupy the property throughout those works (paragraph 3 of schedule 3),

• the landlord intends to live in the property as their only or main home (paragraph 4 of schedule 3),

• the landlord intends to use the property for a non-residential purpose (paragraph 6 of schedule 3),

• the tenancy was granted as part of the tenant’s ongoing or proposed employment by the landlord but the tenant is no longer, or did not become, such an employee (paragraph 8 of schedule 3),

• the tenant is not occupying the property as their only or main home, and nor is any person with a lawful sub-tenancy of the property (paragraph 10 of schedule 3),

• the tenant has been convicted of a relevant crime (being one either relating to the property or one which occurred in the vicinity of it and which is punishable by imprisonment) (paragraph 13 of schedule 3).

160. In addition, there are two eviction grounds which, prior to the temporary changes made by the Coronavirus (Scotland) Act 2020, could be either discretionary or mandatory depending on the precise circumstances in which eviction was being sought. Both of those eviction grounds are modified by this section so that there will, on a permanent basis, now only be a discretionary eviction ground available. Those grounds are as follows—

• the property is held for use in connection with a religious purpose and is required for that purpose (paragraph 7 of schedule 3),

• the tenant has been in rent arrears for at least three consecutive months (paragraph 12 of schedule 3).

161. All of these eviction grounds will be dealt with in the same way as those eviction grounds which have always been discretionary under the 2016 Tenancies Act (such as the landlord’s close family member intending to live in the property, or the tenant having breached the tenancy agreement in some way unrelated to rent arrears).

162. Although there is a reference in subsection (3)(k) of this section to the eviction ground of anti-social behaviour, it should be noted that this has always been a discretionary eviction ground. Since enactment, paragraph 14(2) of schedule 3 of the 2016 Tenancies Act has provided that the Tribunal “may”, rather than “must”, issue an eviction order where eviction is sought on the basis of anti-social behaviour. Paragraph (k) simply adds in, for the sake of consistency, that if ordering eviction on this ground then the Tribunal must be satisfied that it is reasonable to do so.