LEGAL BRIEFING
SHORT ASSURED TENANCIES RECEIVE THEIR NOTICE
TO QUIT
Private Housing (Tenancies) (Scotland) Act 2016
Landlords and tenants will have to adjust to life without the familiar short assured tenancies
following the enactment of The Private Housing (Tenancies) (Scotland) Act 2016 which has
introduced a new tenancy regime for the private rented sector.
The new tenancy will be known as a private residential tenancy (“PRT”).
However, the new regime is not expected to come into force until late 2017. Until then, short
assured tenancies can be used.
The main provisions are:
Tenancy Terms
Future regulations will set out statutory terms of a PRT which landlords must include in any lease.
Tenancy Information
The landlord will have a duty to provide the tenant with a written lease and any other information
which may be set out under secondary legislation. The First-tier Tribunal will have the power to draw
up terms if no lease is provided or if it is unlawful.
If tenancy information is not provided the First-tier Tribunal can sanction the landlord to pay
the tenant up to the equivalent to 3 months' rent if there is failure to provide one item of
information required or up to 6 months' rent if there is a failure to provide both a lease and at least
one other required item of information.
Rent
Rent Variation by Landlord
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Rent can be reviewed no more frequently than once every 12 months
The landlord must give the tenant 3 months' notice of such review
Within 21 days of receiving the notice the tenant can refer the rent-increase notice to the
rent officer who will set the open market rent
The landlord or tenant may appeal the rent officer's decision to the First-tier Tribunal which
may set the rent
The landlord may apply to the rent officer for a rent increase following improvements
carried out by him
Rent Pressure Zones
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Local authorities will be able to apply to the Scottish Ministers to designate all or part of the
area as a Rent Pressure Zone whereby rent increases on existing PRTs would be restricted in
line with an inflation-linked formula (CPI + 1%)
The Scottish Ministers must consult landlord and tenants in the proposed area before
deciding whether to designate
Once designated, a rent pressure zone can last up to five years
A rent pressure zone does not prohibit the negotiation of the initial rent under a PRT
Termination
Security of Tenure
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The new PRT can only be ended in accordance with the Bill
Lawfully granted sub-tenancies will have the same protection as the mid-landlord's tenancy
Where ownership of a property let under a PRT is transferred the landlord’s interest under
the tenancy transfers with it
Termination by the Tenant
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The tenant can bring the PRT to an end by providing the landlord with 28 days' written
notice after the expiry of the initial term
This notice period cannot be extended at the outset of the agreement but can be altered by
agreement after the PRT has begun
Termination by the Landlord
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The landlord can issue the tenant with a notice to leave at any point after the tenancy has
begun ONLY if one of the grounds specified in schedule 3 is met(see below)
If the tenant does not leave the landlord can apply to the First-tier Tribunal to issue an
eviction order
The First-tier Tribunal can issue an eviction notice if it finds that one of the eviction grounds
in schedule 3 applies
If the tenant has occupied the property for less than 6 months the notice period is 28 days
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If the eviction is due to the tenant's breach of the lease or behaviour, the notice period is 28
days
If the tenant has occupied the property for over 6 months and the eviction is not due to the
tenant's breach of the lease or behaviour, the notice period is 84 days
The landlord must notify the local authority that they are applying for an eviction notice
from the First-tier Tribunal
If the tenant does not leave the property after being issued an eviction notice, the case can
then proceed to the Sheriff Court
Wrongful Termination
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Where a PRT has been brought to an end by an eviction order from the First-tier Tribunal
and it is then found that the Tribunal was misled into issuing the order, the Tribunal can
issue a wrongful-termination order
Where the PRT was brought to an end without an eviction order (tenant left on notice to
leave) an application can be made to the Tribunal for a wrongful-termination order if it
believed the tenant was misled into ceasing occupation
A wrongful-termination order is an order requiring the landlord to pay the tenant an amount
not exceeding six months' rent
When the Tribunal issues a wrongful-termination order it must notify the local authority
where the landlord is registered and that Order will then be raised in a landlord’s reregistration process
Death of the Tenant
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A PRT is not terminated on the death of a sole tenant if the PRT has not been inherited
previously AND there is a qualifying successor
A qualifying successor is a partner, direct family member (as defined) or carer (as defined)
and succession rights apply in that order
The successor must have been living in the property as their principal home for at least 12
months before the tenant died
The landlord must have been given written notice that the person was living there as their
principal home and would qualify as a successor should the tenant die
Existing Assured and Short Assured Tenancies can also be inherited on the terms above and
at that time they become PRTs
Eviction grounds
Should the case proceed to Tribunal, the onus is on the landlord to prove that the ground applies.
Some grounds are mandatory and some are discretionary. Where a discretionary ground is relied on,
the landlord will also require to establish that it is reasonable to evict in all of the circumstances
1. Landlord intends to sell
The Tribunal must find this ground applies if the landlord intends to sell the property for open
market value within 3 months of vacant possession being obtained.
2. Property to be sold by lender
The Tribunal must find this ground applies if the property is subject to a heritable security and the
creditor requires the tenant to leave the property for the purpose of disposing of it with vacant
possession.
3. Landlord intends to refurbish
The Tribunal must find this ground applies if the landlord intends to refurbish the property and it
would be impractical for the tenant to continue to occupy the property given the nature of the
refurbishment.
4. Landlord intends to live in property
The Tribunal must find this ground applies if the landlord intends to occupy the property as his
principal and only home for at least 3 months.
4A. Member of the landlord's family intends to live in the property
The Tribunal may find this ground applies if a member of the landlord's family (as defined) intends to
occupy the property as his principal and only home for at least 3 months.
5. Landlord intends to use the property for non-residential purpose
The Tribunal must find this ground applies if the landlord intends to use the property for a purpose
other than providing a person with a home
6. Property required for religious purpose
The Tribunal must find this ground applies if the property is held for the purpose of being available
for occupation by a religious worker as a residence from which the duties of that person are to be
performed, the property has previously been occupied by a religious worker as a residence form
which their duties are performed and the property is required for that purpose.
7. No longer an employee
The Tribunal must find this ground applies if the tenancy was granted as a consequence of the
tenant being an employee of the landlord, or in the expectation that the tenant would be an
employee, and that person is no longer an employee.
The application to the Tribunal must be made within 12 months of the tenant ceasing to be an
employee.
The Tribunal may find this ground applies if an application is made after 12 months has passed since
the tenant was an employee.
8. No longer in need of supported accommodation
The Tribunal may find this ground applies if the tenancy was granted in consequence of the tenant
being assessed under section 12A of the Social Work (Scotland) Act 1968 to have needs calling for
the provision of community care services and the tenancy would not have been granted based on
the assessment of the tenant's latest assessment of needs.
9. Not occupying the let property
The Tribunal must find this ground applies if the let property is not being occupied as the only or
principal home of either the tenant or the person to whom the tenant lawfully sublets, and the lack
of occupation is not attributable to a breach of the landlord's duties under the repairing standard
requirements.
10. Breach of tenancy agreement
The Tribunal may find this ground applies if the tenant has failed to comply with a term of their
tenancy (other than rental payment).
11. Rent arrears
The Tribunal must find this ground applies if, at the beginning of the first day on which the
Tribunal considers the case:
• the tenant is in arrears of at least one's month's rent,
• the tenant has been in arrears (by any amount) for at least 3 continuous months, and
• this is not due to a consequence of delayed benefits payments
The Tribunal may find this ground applies if for 3 or more consecutive months the tenant has been in
arrears.
12. Criminal behaviour
The Tribunal must find this ground applies if, after the tenancy is granted, the tenant has a relevant
conviction and either the application for an eviction order is made within 12 months of the
conviction or the Tribunal is satisfied that the landlord has a reasonable excuse for not applying
within 12 months.
A “relevant conviction” means a conviction or offence which was committed by using, or allowing
the use of, the let property for an immoral or illegal purpose, or which was committed within or in
the locality of the property and is punishable by imprisonment.
13. Anti-social behaviour
The Tribunal may find this ground applies if the tenant has behaved in a relevant anti-social manner
in relation to another person, and the application for an eviction order was made within 12 months
of the behaviour occurring or the Tribunal is satisfied that the landlord has a reasonable excuse for
not applying within 12 months.
A person can be regarded as behaving anti-socially if they have done something which causes, or is
likely to cause, the other person alarm, distress, nuisance or annoyance, or amounts to harassment
of the other person.
13A. Association with a person who has a relevant conviction or is engaged in relevant antisocial
behaviour
The Tribunal may find this ground applies if a tenant, or someone they sublet to or someone they
have permitted into the property more than once, has received a relevant conviction or has engaged
in relevant anti-social behaviour. The Tribunal must be satisfied it is reasonable to issue an eviction
notice on account of the behaviour and the landlord must apply for the eviction notice within 12
months of the behaviour or have a reasonable excuse for not applying within 12 months
14. Landlord has ceased to be registered
The Tribunal may find this ground applies if the landlord is not entered in the landlord register
prepared and maintained by the local authority
15. HMO licence is revoked
The Tribunal may find this ground applies if the landlord's HMO licence has been revoked
16. Overcrowding statutory notice
The Tribunal may find this ground applies if an overcrowding statutory notice has been served on
the landlord
Transition from regimes under earlier enactments
Once the Private Housing Tenancies (Scotland) Act comes into force no new Assured or Short
Assured Tenancies can be created.
On succession to a Short Assured Tenancy, Assured Tenancy or Regulated Tenancy in terms of the
new legislation it becomes a PRTs.
Tenancies which cannot be PRTs
Schedule 1 of the Act provides a list of those tenancies which are excluded from the definition of
PRT:
• a tenancy where the rent is less than £6 a week and it has not previously been a private
residential tenancy
• a tenancy if the let land includes at least 2 acres of agricultural land
• a relevant agricultural tenancy (which includes the new tenancies created by the Land
Reform (Scotland) Bill (as passed)) and the let property is occupied by the person responsible
for the control (whether as tenant or as the tenant’s agent or employee) of the farming of
the let property
• student lets if the landlord is a university or another defined institution
• where the landlord lets at least 30 bedrooms in the same building or complex and the other
properties are used predominantly for housing students
• holiday lets
• where there is a resident landlord
• police, military or social housing
• lets to homeless persons, persons on probation or released from prison, asylum seekers or
displaced persons or a tenancy under a Shared Ownership Agreement
• various tenancies under previous legislation, including assured and short assured tenancies
under the 1988 Act
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Comment
It will be some time before this new regime comes into force and, indeed, we still await details of
the statutory terms of the new type of tenancy which must be used.
Short Assured Tenancies can safely continue to be granted until, but not after, the new regime
starts.
Of immediate interest to land and rural business clients are the following points:
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It will become significantly more difficult for landlords to obtain vacant possession as the “no
fault” ground for termination, which is commonly used at present to ensure that a short
assured tenancy comes to an end on the due date, will disappear with the introduction of
the new PRT
This will be of relevance to estates and farms with large or small portfolios of let properties
Despite pressure from lobbying groups, there is no ground for repossession if a cottage is
required for an employee; this may make it difficult in rural areas where a new employee,
perhaps for a diversified business, requires a house
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For those with other “buy to let” properties, perhaps in a University city, it may become less
easy to ensure that tenants under the new PRTs vacate to allow summer holiday lets as at
present
The succession provisions mean that, following the tenant’s death, a new individual,
perhaps a spouse, partner or resident carer, may become tenant, thus extending the period
of the lease
If a let property is situated in a Rent Pressure Zone rent increases will be limited to an
inflation-linked formula (CPI +1%).
For more information or advice, contact any of the following members of our Land and
Rural Business team
Richard Blake, Consultant
[email protected]
Tel 01738 621212
Kenneth Mackay, Partner
[email protected]
Tel 0131 225 8705
Linsey Barclay-Smith, Partner
[email protected]
Tel 0131 225 8705
Chris Lindley, Partner
[email protected]
Tel 01738 621212
Susan Duff, Associate
[email protected]
Tel 01334 652285
John Angus, Consultant
[email protected]
Tel 01334 477107
George Dunlop, Partner
[email protected]
Tel 01241 872683
thorntons-law.co.uk
This Briefing Note is intended only as a general guide to the main provisions in the Private Housing (Tenancies)
(Scotland) Act 2016. Thorntons is a trading name of Thorntons Law LLP.
12 April 2016