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 (“
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 “
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.
163.This section puts on a permanent footing the temporary changes made by paragraph 3 of schedule 1 of the Coronavirus (Scotland) Act 2020. It amends the Housing (Scotland) Act 1988 (“
164.Prior to the 2016 Tenancies Act, most tenancies were assured tenancies. As with private residential tenancies, it was not possible to opt out of the assured tenancy regime, although there were some tenancies which did not meet the necessary criteria to fall within it. For example, to be an assured tenancy, the tenant had to be a person occupying the property as their only or main home. In addition, schedule 4 of the 1988 Act lists various property types or letting arrangements which cannot be assured tenancies, such as certain student lets, a tenant living with a resident landlord or social housing. The private residential tenancy replaced the assured tenancy and since the 2016 Tenancies Act came fully into force, it has not been possible to grant a new assured tenancy (see schedule 5 of that Act). However, existing assured tenancies were allowed to continue (although the parties could opt to convert them if they wished).
165.As with private residential tenancies, prior to the temporary modifications made by the Coronavirus (Scotland) Act 2020, some eviction grounds for assured tenancies were mandatory and some were discretionary. A commonly used type of assured tenancy was the short assured tenancy, which, unlike other assured tenancies, could be terminated under section 33 of the 1988 Act simply on the basis of having reached its previously agreed end date. However, the majority of eviction grounds (referred to in the 1988 Act as “grounds for possession”) are set out in schedule 5 of the 1988 Act and apply to all types of assured tenancy.
166.The eviction grounds which change from mandatory to discretionary on a permanent basis under this section can be broadly summarised as follows—
the property was let under a short assured tenancy, the tenancy has reached its end date, and tacit relocation is not operating (section 33 of the 1988 Act),
the property was previously occupied by the landlord and is now needed for the landlord or their spouse/civil partner as their only or main home (ground 1 in schedule 5 of the 1988 Act),
the property is to be sold by the lender under a heritable security (ground 2 in schedule 5),
the property was let for 8 months or less, and was let as a holiday home within the year preceding the tenancy (ground 3 in schedule 5),
the property was let for a year or less, and was let as student accommodation within the year preceding the tenancy (ground 4 in schedule 5),
the property is held for use in connection with a religious purpose and is required for that purpose (ground 5 in schedule 5),
the landlord intends to demolish or carry out substantial work to the property and cannot reasonably carry out the work without the tenant giving up possession (ground 6 in schedule 5),
the tenancy was inherited and proceedings for recovery of possession were commenced within a year of the former tenant’s death (ground 7 in schedule 5),
167.These eviction grounds will be dealt with in the same way as those eviction grounds which have always been discretionary under the 1988 Act (such as the tenant having been convicted of relevant anti-social behaviour, having been persistently late in paying rent, or having breached the tenancy agreement in some other way).
168.In addition, one eviction ground is repealed on the basis that it is now superfluous. Ground 8 in schedule 5 allowed eviction on the basis of rent arrears provided that, both at the date of serving notice of proceedings and at the date the proceedings begin, the arrears amounted to at least three months’ rent. However, Ground 12 in schedule 5 allows eviction on the basis of rent arrears without the arrears having to be of a particular amount (although they must still exist both at the date of serving notice of proceedings and at the date the proceedings begin). While previously the more serious rent arrears ground served a purpose because it gave rise to a mandatory, rather than discretionary, case for eviction, that will no longer apply. As such, ground 8 no longer serves any purpose as any eviction that would otherwise have been sought under it can be sought under ground 12 instead.
169.This section puts on a permanent footing the temporary changes made by paragraph 5 of schedule 1 of the Coronavirus (Scotland) Act 2020. It amends the Rent (Scotland) Act 1984 (“
170.The 1984 Act tenancy regime of “regulated tenancies” pre-dated the introduction of assured tenancies. Again, this was effectively a type of “wrapper” imposing certain rules which automatically applied to tenancies which met the criteria set out in the legislation. Part 1 of the 1984 Act sets out various property types or letting arrangements which are excluded from the regime, such as certain student lets, a tenant living with a resident landlord or social housing. New tenancies under the 1984 Act were phased out under sections 42 to 46 of the 1988 Act. There are therefore likely to be exceedingly few tenancies (if any) still operating under this legislative regime.
171.As with private residential tenancies and assured tenancies, prior to the temporary modifications made by the Coronavirus (Scotland) Act 2020, some eviction grounds for tenancies under the 1984 Act were mandatory and some were discretionary. The grounds for granting an eviction order (referred to in the 1984 Act as an “order for possession”) are set out primarily in schedule 2 of the 1984 Act.
172.The eviction grounds which change from mandatory to discretionary on a permanent basis under this section can be broadly summarised as follows:
the property was previously occupied by the landlord and it is now needed for the landlord or their family member, or is to be sold by the lender under a heritable security or is required following the landlord’s death (case 11 in schedule 2 of the 1984 Act),
the property was acquired with the intention of being used as a retirement home and the landlord has now retired and requires it, or it is to be sold by the lender under a heritable security or is required following the landlord’s death (case 12 in schedule 2),
the property was let for 8 months or less, and was let as a holiday home within the year preceding the tenancy (case 13 schedule 2),
the property was let for a year or less, and was let as student accommodation within the year preceding the tenancy (case 14 in schedule 2),
the property was let under a short tenancy and the short tenancy has ended (case 15 in schedule 2),
the property is held for use in connection with a religious purpose and is required for that purpose (case 16 in schedule 2),
the property has been used in connection with agricultural work and various other related criteria are met (cases 17 to 19 in schedule 2),
the property is tailored to meet special needs, the tenant does not have such needs and the property is required for a person who has such needs (case 20 in schedule 2),
the landlord is in the armed forces and requires the property as a residence or it is to be sold by the lender under a heritable security or is required following the landlord’s death (case 21 in schedule 2).
173.These eviction grounds will be dealt with in the same way as those eviction grounds which have always been discretionary under the 1984 Act (such as the tenant having been convicted of relevant anti-social behaviour, being in rent arrears, or having breached the tenancy agreement in some other way).