I have previously blogged about a number of changes made to Scottish Landlord and Tenant legislation introduced by the Coronavirus (Scotland) Acts during the turbulent course of 2020. Those changes included the increase of notice periods for most eviction notices and the switch from considering eviction grounds on a mandatory basis to an evaluation of reasonableness.
There are further changes afoot which Landlords must be aware of. Should landlords wish to evict their tenants on the ground of rental arrears they must now comply with a number of prescribed "Pre-Action Requirements". Whilst the Pre-Action requirements were alluded to in the second Scottish Coronavirus Act of 2020, Scottish Ministers have now codified what is expected of Landlords through the "Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020".
The Pre-Action requirements apply to:
- Assured, Short Assured and Private Residential Tenancies.
- All Notices to Leave/Quit served on or after 7 April 2020.
- Applications made to the First Tier Tribunal on or after 6 October 2020 where the Landlords cites rental arrears as their ground for eviction.
- Applications where all or part of the arrears occurred on or after 27 May 2020.
As can be seen the Pre-action requirements have wide coverage. It is more than likely they will cover most private landlords currently considering eviction action.
So what are the Pre-Action requirements?
Landlords must provide their tenant(s) with clear information relating to:
- the terms of the tenancy agreement;
- the amount of rent for which the tenant is in arrears;
- the tenant's rights in relation to proceedings for possession of a house; and
- signpost where the tenant may access information and advice on financial support and debt management.
Landlords must also make reasonable efforts to agree with the tenant a reasonable plan to make payments to the landlord of:
- future payments of rent; and
- the rent for which the tenant is in arrears.
Lastly Landlords must be able to convince the First Tier Tribunal of the following matters-
- any steps being taken by the tenant which may affect the ability of the tenant to make payment to the landlord of the rent for which the tenant is in arrears within a reasonable time,
- the extent to which the tenant has complied with the terms of any payment plan agreed;
- any changes to the tenant's circumstances which are likely to impact on the extent to which the tenant complies with the terms of a payment plan agreed.
The Pre-Action requirements are expected to remain in force until at least March 2021, when the Scottish Government will review them with a view to either renewing their application or discontinuing their requirement.
Whilst most landlords or their agents would in their ordinary course fulfil a number of the prescribed requirements before raising proceedings, the Scottish Government is clearly concerned with those Landlords who may choose to ignore the plight of their unfortunate tenants before doing so. They hope that the new regulations will allow some tenancies to weather the storm of the pandemic by encouraging both parties to talk prior to either seeking legal advice.
Given their recent introduction it remains to be seen how stringently the First Tier Tribunal will put Landlords to the test. Before their introduction, no requirements existed in the private rented sector for landlords to undertake any action in conjunction with tenants to manage arrears prior to raising proceedings on the grounds of rent arrears. Many landlords I have spoken to about these changes are not overly pleased with further hurdles being put in their path on the road to repossessing their property. Many are struggling financially during these difficult times and feel that their interests are perhaps not being protected in the same vein as tenants' rights are.
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