Extension to private residential tenancy notice periods will continue into 2022

You may recall back in April 2020 I blogged about the impact on Scottish private residential tenancy legislation brought about by the “temporary” measures of the Coronavirus (Scotland) Act 2020. In a nutshell those were:

• The introduction of longer notice periods making it harder for landlords to recover possession of their property from a tenant;
• The departure from mandatory eviction grounds to a blanket discretionary examination of all eviction grounds based on reasonableness; and
• The imposition of compulsory “pre-action” requirements on landlords seeking recovery of their property on the grounds of rental arrears.

My previous blog touched upon the temporary nature of those provisions. At the very latest I expected them to expire on 30 September 2021 when they were set to do so. Turns out I was wrong.

The Scottish ministers have recently introduced legislation that will extend the period in which these temporary provisions will remain in place by a further 6 months. They are now set to expire on 31 March 2022. This has been achieved through the Coronavirus (Extension and Expiry) (Scotland) Act 2021 which was enacted earlier this month.

That means beyond 30 September 2021 up to 31 March 2022 landlords will still be required to provide their tenants with an extended (and in most cases, generous) period of notice in which to bring their tenancy to an end.

As a reminder of the current length of notice required for notices served on or after 3 October 2020:

• Termination of Short Assured Tenancy (on non-grounds basis) = 6 months
• Termination of Assured Tenancy (or short assured on grounds basis) = 6 months – in all cases but for;
  • Where the landlord wishes to move back into the property = 3 months
  • Where the landlord can provide suitable alternative accommodation = 2 months
  • Where the tenant is causing anti-social behaviour or is convicted in connection with the let property = 28 days

• For Private Residential Tenancies = 6 months – in all cases but for;
  • Where the landlord is no longer registered with local authority, no longer has an HMO licence or they/family want to live in the property = 3 months
  • Where the tenant no longer occupies let property, has engaged in antisocial or criminal behaviour in relation to the let property (or has associated with persons who have done so at the let property) = 28 days

What is most concerning is that the new Act gives Scottish ministers a power to extend the date of expiry from 31 March 2022 to 30 September 2022. We are now looking at the possibility of having extended notice periods in place for over two years. There is nothing to say that the government will refrain from introducing further extensions beyond that date.

Whilst there are plenty of good cases to be made for keeping the extended notice periods in place such as reduced pressure on public services and to supress a rise in homelessness, it remains debateable if the current extensions strike a fair balance between landlords and tenants. There are of course cases where landlords who depend on their rental income are facing greater lengths of time without returns or where the sale of private property is being held up as a result of sitting tenants. The financial effects of which can be crippling.

Scottish ministers are to review the effectiveness of the temporary measures every two months. If they are deemed no longer necessary they can be removed earlier than 31 March 2022. However based on the government’s track record I am doubtful that the measures in relation to tenancy matters will be removed before the set date. I would hope whilst Scottish minister review the provisions over the coming months they would consider an alternative to removal and implement a reduction of the default 6 month extension to a lesser period, much like was done between April 2020 and October 2020 in relation to some of the eviction grounds.

With the extension in place landlords will continue to face further pressures in the private letting market. If you are a landlord who is looking to end their private tenancy or a letting agent who manages properties for landlord clients, our debt recovery department would be delighted to assist you during this difficult period. Please don’t hesitate to get in touch with us.