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The Coronavirus (Scotland) Act 2020, passed by the Scottish Government on 1 April 2020, will come into force as soon as it receives royal assent, likely to be this week.

It will impose temporary but significant changes to the eviction process in both the private rented sector and the commercial property sector in Scotland.

Residential Tenancies

The effect of the legislation, for all type of residential tenancy, is to extend the notice period that requires to be given to a tenant before proceedings for eviction can start.  The length of notice now required depends on the grounds that eviction is being sought.  In most cases, it is six months, but less (28 days, 2 months or 3 months) in certain circumstances.

The First-Tier Tribunal, who have taken overhearing eviction cases in Scotland, also now have extra discretion.  Under the existing law, if the landlord can prove certain circumstances exist (e.g. that there is more than three months’ rent in arrears) then the Tribunal has no option but to grant the eviction.  This will temporarily change so that the Tribunal has discretion in every residential eviction case.

It is always important in residential cases that the correct notices are correctly served – otherwise the application for eviction will be refused and will have to be re-started from square one.   We would recommend that any landlord who requires a property back, or any tenant being threatened with eviction, contacts us for guidance at an early stage – the sooner the better.

Commercial Tenancies

The Act changes the required notice period for a notice threatening irritancy from 14 days to 14 weeks.  This includes notices that have already been served but have not expired when the Act comes into force and those notices will be invalid.

Compounding difficulty for landlords is the fact that the Courts are effectively closed except for “urgent” matters – examples being child protection issues or where an urgent order is required to prevent harm or illegal acts taking place.  For the time being, landlords cannot therefore raise Court action either to recover payment of rent arrears or for an order for eviction.

If you are a landlord caught in this difficult position, or indeed a tenant wondering how to proceed, we would urge you to contact us as soon as possible.

How to proceed?

The reality is that many businesses and individuals are experiencing financial hardship which will result in problems on top of the usual landlord/tenant issues.  These new measures will hopefully on the one hand help to save businesses and jobs, a long term good, but they will also inevitably lead to difficulties in the short term where things go wrong between the landlord and the tenant because of the necessary delays before enforcement action can be taken.

Landlords, whether residential or commercial, should continue to manage their properties and keep in touch with tenants throughout.  A landlord who has acted fairly and reasonably may well be given the benefit of the doubt, should it come to that, in any proceedings that end up being necessary.  Where issues cannot be resolved then landlords should consider taking steps to have notices served and put their tenants on notice as soon as possible.  This will serve two purposes: 1. it will minimise delay in getting the application for eviction raised and 2. it may be that service of a notice on a tenant will push them into action.  However, landlords need to be clear that there will be a delay before they can take significant enforcement action and so management of issues and communication with tenants would be prudent short-term.

Tenants should also be reasonable – there may be serious practical difficulties with landlords attending to repairs and there should be patience where these are not urgent.  Also, delays in the eviction process should not be viewed as a reason to stop paying rent.  The rent remains due and tenants remain bound by the lease contract.  Any failures, including failure to pay rent, could well result in enforcement action being taken by landlords.  The longer rent remains unpaid the more difficult it will be to pay back arrears, which risks eviction, an order for payment (which would mean wages or bank accounts could be arrested) or even bankruptcy in some cases.  Without a doubt the prudent course for tenants is to comply with their lease and keep in touch with their landlord if they are experiencing difficulty.

Whether a landlord or tenant, if you have any issues with your tenant or landlord please do not hesitate to contact us.

Colin-1

Colin Duck

Solicitor 

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