Consultation on a New Tenancy for the Private Sector

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1 Consultation on a New Tenancy for the Private Sector

2 HOW WE WOULD LIKE YOU TO HELP This consultation paper sets out the Scottish Government s proposal for developing a new type of tenancy for the private rented sector. Please read it and give us your views on the proposed outline of the new tenancy. Please do this by completing the consultation answer form. Your answers will help us shape a new, modernised and simplified tenancy system for the private sector in Scotland. HOW TO RESPOND Please send your completed respondent s details form and consultation answer form to: PRSTenancies@scotland.gsi.gov.uk Alternatively, you may post the respondent s details form and questionnaires to: Jen Gracie Private Rented Sector Team Scottish Government 1H-South Victoria Quay Edinburgh EH6 6QQ Please send us your response to this consultation paper by 28 December COMPLETING THE CONSULTATION ANSWER FORM Please send us an electronic reply if possible. When completing the form electronically, please ensure you complete any box that needs to be ticked. You do this by double-clicking the box and selecting checked. In the Permissions section, you can respond as an individual or a group/organisation. Please note whichever option you select, you need complete only one column (questions (a) and (b) for individuals or question (c) for organisations). Everyone who responds should complete question (d) whether replying as an individual or for an organisation. In addition to giving your details, you should complete the consultation answer form. We would be grateful if you would use the consultation answer form provided. If, however, you prefer to respond in hard copy using a separate piece of paper, please clearly show which questions you are responding to as this will help our analysis. Page 2 of 34

3 HANDLING YOUR RESPONSE We need to know how you want your response to be handled and whether you are happy for your response to be made public. Completing the respondent s information form will ensure we treat your response appropriately. If you ask for your response not be published, we will view it as confidential and treat it accordingly. Everyone who responds should be aware that the Freedom of Information (Scotland) Act 2002 applies to the Scottish Government. We would therefore have to consider any request made to us under the Act for information about responses. NEXT STEPS IN THE PROCESS If you have given your permission for your response to be made public, and after we have checked that it contains no potentially offensive material, responses will be made available to the public in the Scottish Government Library and on the Scottish Government consultation web pages within 25 working days of the consultation closing. You can make arrangements to view responses by contacting the SG library on Responses can be copied and sent to you, but a charge may be made for this service. After the consultation closing date, we will analyse and consider all responses along with any other available evidence to help us reach a decision on private sector tenancies. We aim to issue a report on this within 12 weeks of the closing date. Page 3 of 34

4 CONTENTS Respondent s details and consultation Page 5 answer form Why this consultation? Page 10 Private Rented Sector Strategy Page 11 PRS Tenancy Review Group Page 12 Consultation proposals Page 13 Rents Page 13 Current assured tenancy system Page 14 Proposed new tenancy system Page 19 Summary of the proposed new tenancy Page 20 system Security of tenure for tenants Page 23 Safeguards for landlords, lenders and Page 27 investors Rent levels Page 32 Page 4 of 34

5 Consultation on a new tenancy for the private rented sector RESPONDENT INFORMATION FORM Please note: this form must be returned with your response to ensure that we handle your response appropriately 1. Name/Organisation Organisation Name Title Mr Ms Mrs Miss Dr Please tick as appropriate Surname Forename 2. Postal Address Postcode Phone 3. Permissions - I am responding as Individual / Group/Organisation Please tick as appropriate (a) Do you agree to your response being made available to the public (in Scottish Government library and/or on the Scottish Government web site)? (c) The name and address of your organisation will be made available to the public (in the Scottish Government library and/or on the Scottish Government web site). Please tick as appropriate Yes No (b) Where confidentiality is not requested, we will make your responses available to the public on the following basis Are you content for your response to be made available? Please tick ONE of the following boxes Please tick as appropriate Yes No Page 5 of 34

6 Yes, make my response, name and address all available Yes, make my response available, but not my name and address Yes, make my response and name available, but not my address or or (d) We will share your response internally with other Scottish Government policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for Scottish Government to contact you again in relation to this consultation exercise? Please tick as appropriate Yes No Page 6 of 34

7 CONSULTATION ANSWER FORM Question 1: Do you agree that the no-fault ground for a landlord to repossess their property should be excluded from the new tenancy system? Please explain your answer. Question 2: Do you agree that the ability to roll over tenancies on a monthly basis should be excluded from the new tenancy system? Please explain your answer. Question 3a: Do you agree that the new type of tenancy should have a minimum duration of six months? Please explain your answer. Question 3b: Do you agree that the tenancy should have no maximum period? Please explain your answer. Question 3c: Do you agree that a tenant should be able to request a shorter tenancy? Please explain your answer. Question 4a: Do you agree that the notice period should be linked to how long the tenant has lived in the property? Please explain your answer. Page 7 of 34

8 Question 4b: Do you agree with the four proposed notice periods? If you do not agree with all four of the notice periods, please tell us which ones you disagree with and why. Question 5a: Do you agree that all the proposed repossession grounds should be mandatory? Please explain your answer. Question 5b: Do you agree with the proposed list of new repossession grounds? Please explain your answer. Question 5c: Are there other repossession grounds we should include in the list? Please explain your answer. Question 6: Do you agree that landlords should be able to recover possession of their property with a 28-day notice period in the circumstances proposed? Please explain your answer. Question 7: Do you agree that landlords should no longer have to issue pre-tenancy notices to recover possession of their property? Please explain your answer. Question 8: Do you agree that the notice period for all proceedings should be four weeks? Please explain your answer. Page 8 of 34

9 Question 9: Do you agree with the proposed timescales for a tenant giving notice to a landlord to leave the property? Please explain your answer. Question 10: Do you agree that a model tenancy agreement should be introduced? Please explain your answer. Question 11a: What are your views on rent levels in the private rented sector in Scotland? Question 11b: What action, if any, should the Scottish Government take on rent levels in the private rented sector in Scotland? Please explain your answer Question 11c: What rent review conditions, if any, should the new tenancy system include? Please explain your answer. Question 12: Overall, do you feel that the proposed new tenancy system strikes the right balance between the interests of landlords and tenants? Please explain your answer. Question 13: Do you have any (other) suggestions/comments on the new tenancy system for the private rented sector? If so, please tell us. Page 9 of 34

10 WHY THIS CONSULTATION? The private rented sector is changing. It has more than doubled in size in the past 15 years and covers more than an eighth of all homes in Scotland 1. Recent figures show 333,231 homes are rented privately 2. The sector has always catered for a broad range of tenants and met a wide range of needs and demands. Tenants include young professionals and people who move often for their work, as well as students and newly formed households. Two of the fastest-growing groups of tenants since 1999 have been families and people wanting to stay in the sector longer-term. In 2013, nearly a quarter of private rented sector households had children, an estimated 80,000 households compared to 20,000 in The sector provides a home for nearly one in seven of all households with children 3. We want the tenancy system to work well for all tenants. This has been an important part of developing the proposals in this consultation. Some tenants need more secure, longer-term tenancies, while others greatly value the ability to move in and out of tenancies. There has also been change among landlords. The proportion of landlords owning a small number of properties (often one or two) has remained broadly similar 4. But since 2007 there has been a growth in those who have become landlords because they were unable or reluctant to sell their property 5. Some new landlords will have buy-to-let mortgages. There is also the significant potential for, and growing interest from, new institutional investors in the sector to help fund the supply of new homes to privately rent. In developing these proposals, we have listened carefully to what landlords, lenders and investors want from a tenancy system. This context of change has led us to propose our reforms. They aim to improve security of tenure for tenants, while giving suitable safeguards for landlords, lenders and investors. We know that the private rented sector is important in giving many tenants the flexibility they need in their living arrangements; but an increasing number could also benefit from improved security of tenure. We also know that the tenancy system must work well for landlords, lenders and investors, within the broader regulation and justice system. 1 Scotland s People Annual Report: Results from the 2013 Scottish Household Survey, August 2014, Scottish Government, Available at: 2 Figures from Landlord registration, as at 31 August Scotland s People Annual Report: Results from the 2013 Scottish Household Survey, August 2014, Scottish Government, Available at: 4 Review of the Private Rented Sector: Volume 1: Key Findings and Policy Implications, March 2009, Scottish Government, Available at: 5 Review of the Private Rented Sector: Volume 1: Key Findings and Policy Implications, March 2009, Scottish Government, Available at: Page 10 of 34

11 PRIVATE RENTED SECTOR STRATEGY Reform of the private rented sector tenancy is part of the Scottish Government s broader strategic aim of making the sector more professional. Tenancy reform should be viewed in the context of: the Scottish Government s Private Rented Sector Strategy A place to stay, a place to call home. A Strategy for the Private Rented Sector in Scotland (PRS Strategy), and the action we are taking to improve quality in the sector. A more professional sector will benefit tenants, landlords and those who work or are thinking of investing in it. The PRS Strategy was published in May It was informed by the work of the Private Rented Sector Strategy Group, which helped the Scottish Government to produce and consult on a draft Strategy in The Strategy aims to improve and grow the sector by enabling more effective regulation, applying tougher enforcement action and attracting new investment. The PRS Strategy sets out our vision for the sector, which is: A private rented sector that provides good quality homes and high management standards, inspires consumer confidence, and encourages growth through attracting increased investment. To achieve this vision, it listed three strategic aims: To improve the quality of property management, condition and service. To deliver for tenants and landlords, meeting the needs of the people living in the sector; consumers seeking accommodation; and landlords committed to continuous improvement. To enable growth and investment to help increase overall housing supply. Page 11 of 34

12 PRIVATE RENTED SECTOR TENANCY REVIEW GROUP To take forward an action in the PRS Strategy, in September 2013 the Scottish Government set up the Private Rented Sector Tenancy Review Group because it: realised the importance of the tenancy system saw that tenants needs and priorities were changing heard a wide range of opinion among stakeholders about tenancy reform. The Review Group s purpose was to examine how suitable and effective the current private rented sector system was and consider whether changes in the law were needed. The Review Group was independently chaired by Professor Douglas Robertson from the University of Stirling. Its 18 members represented a cross-section of interests from the sector. They considered a range of evidence and expert opinion in their discussions. This included research by Craigforth, who were commissioned by the Scottish Government to explore private rented sector tenants and landlords knowledge and understanding of the current tenancy system. Craigforth s report was published on 12 March Before this, in September 2013, the Scottish Government s Communities and Analytical Services did an evidence review of the private rented sector in Scotland (the 2013 Evidence Review). The Review Group produced a report for Ministers on 9 May It had one main recommendation, 'that the current tenancy for the Private Rented Sector, the Short Assured Tenancy and the Assured Tenancy, be replaced by a new private tenancy that covers all future PRS lets'. The Review Group s report also contained the following suggestions for clarifying and simplifying the tenancy system: Modernising and simplifying the right of possession. Removing outdated repossession grounds. Tackling confusion over ish dates 6 and the issuing of pre-tenancy and multiple notices. Any new tenancy to keep a minimum lease period of six months. Introducing new roll-over arrangements for tenancy agreements. Introducing a new model tenancy agreement. Our proposal for a new tenancy system in this consultation builds on the group s work and its report findings. 6 The ish date is the date the tenancy says that it is to end on. However, this doesn t mean the tenancy actually does end on that date, as it can continue beyond the date if the parties allow that to happen. Page 12 of 34

13 CONSULTATION PROPOSALS Reforming the tenancy system is an important part of achieving our vision and strategic aims. A new and simplified system will result in better property management by providing clarity for tenants and landlords, helping both parties fully understand what the tenancy agreement means for them. This will result in more professional management and give investors reassurance in the modern private rented sector. The new system also provides an opportunity to explore concerns raised by landlords and letting agents on such issues as abandonment (tenants leaving without saying). Better security of tenure may persuade more tenants to assert their existing rights, for example on the condition of their homes, without fear of eviction. Knowing they can only be asked to leave their home on certain specified grounds is likely to give them a greater feeling of security. In short, tenants may feel they have more power and sense of community. The proposals will also improve things for landlords. A new tenancy system offers the opportunity to tackle some of the long-standing issues they face, such as the recovery of possession of their property and rent arrears. This proposal seeks to modernise the grounds of possession. And, by simplifying and streamlining processes, it will give landlords more confidence and reassurance in the system. Please read this document in the light of the broader changes outlined in the PRS Strategy. From 2016 a new PRS Tribunal will hear any private rented sector eviction cases. The Tribunal offers a new, more accessible and effective route to justice for landlords and tenants in the sector. Regulation of letting agent business will also ensure that all letting agents provide a good standard of service to landlords and tenants if a landlord uses an agent to manage their property. Action to improve landlord registration through tougher targeted enforcement will also help raise standards. RENTS We also want to use the consultation to explore rent levels in the private rented sector. We want the sector to be attractive and affordable to anyone who wishes to live in it. Rent levels vary across Scotland but some hot-spots have seen large rent increases in recent years. Later in the paper we explore this further and set out evidence of current trends. Page 13 of 34

14 CURRENT ASSURED TENANCY SYSTEM 1. The tenancy system controls the legal agreement between tenant and landlord. So it is central in making the sector work well. It also sets out how tenants and landlords can assert their rights, and affects whether investment in the sector is likely to be attractive. 2. The current system in Scotland originates from the 1988 Housing (Scotland) Act, which was introduced for all new private rented tenants from 2 January This Act introduced the Assured Tenancy Regime, which covers two types of tenancy an assured tenancy and a short assured tenancy. Below is a summary of some of the features of the current system. Assured tenancy 3. If a property is rented from a private landlord or letting agent, it is likely to be an assured tenancy if: the tenancy started after 2 January 1989, and before the tenancy started, the tenant was not given an AT5 form stating it was to be a short assured tenancy, and the place where the tenant lives is rented as a home, and it is their only or main home. 4. A tenancy cannot be an assured tenancy if any of the following exceptions apply: It was entered into or resulted from a contract made before 2 January There is no rent or a rent of less than 6 a week or its monthly or yearly equivalent. It is for a house that is also a shop or is licensed to sell alcohol for drinking on the premises. It is for a house that is let together with more than two acres of agricultural land. It is for a house that forms part of an agricultural holding and the house is occupied by the person responsible for farming the holding. It is a letting by a university, central institution, or other specified educational institution for a student taking a course of study there or at another specified educational institution. It is a letting for a holiday. The landlord is a resident landlord, which broadly means that the landlord s only or main home must, immediately before the tenancy starts, and at all times during the tenancy, be in the same building as the house or rooms that the tenant is renting; and there must be a direct access, such as a doorway, between the landlord s part of the house and the tenant s part. It is a letting by the Crown or a government department. It is a letting by a local authority or registered social landlord. The tenancy is under a shared ownership agreement a right to occupy the house because of an agreement that does not create a tenancy; for example, because all the accommodation is shared with someone occupying it under a separate agreement. (The difference between a tenancy and some other form of agreement is not always straightforward. Even if the agreement is not Page 14 of 34

15 called a tenancy agreement it may in fact be one; for example, if a tenant has the exclusive use of one room, possibly a bedroom, but shares all the other accommodation, a tenancy will exist.) The tenancy is on a temporary basis for homeless people. Short assured tenancy 5. A short assured tenancy is a special type of assured tenancy and the most common type of agreement in the private sector. A landlord must give a tenant a special form (called an AT5 form) before they sign their tenancy agreement or move in. The form states it is a short assured tenancy. The initial let must be for at least six months otherwise it is not a short assured tenancy. After the initial let period, the landlord has the right to reclaim possession of the property. Tenancy roll-over arrangements 6. If neither the landlord nor tenant has given notice, the tenancy will renew itself. This will be for the same length of time, unless the tenancy agreement says it will be for a different period. 7. For example, a tenancy agreement may say the property is let for a period of six months and then monthly thereafter. This means the tenancy agreement is for six months and renews itself one month at a time after that. Security of tenure 8. All assured tenants have security of tenure, but the details depend on whether the tenant has a short assured tenancy or not. 9. During the agreed period of let, a tenant with a short assured tenancy cannot be evicted as long as they keep to all the tenancy conditions. At the end of the agreed period, the landlord has the right to apply for repossession if they wish. However, a tenant can stay on until the court grants the landlord an order for possession. 10. If a tenant has an assured tenancy (which is not a short assured tenancy), they have security of tenure even when the contractual assured tenancy has ended. They need not leave their home unless the court grants an order that allows the landlord to repossess the house. These (broadly) are the 17 grounds under which the court can grant an order: Ground 1 is that the landlord needs the property for themselves, their wife or husband or civil partner for use as their principal home. The landlord will also have to satisfy the Sheriff that either the house was their only or principal home before they granted the tenancy or that they became the landlord after the tenancy started but not through buying the house in question or acquiring it in exchange for anything of value. Ground 2 is that the house is subject to a heritable security (a mortgage), which was granted before the tenancy was created, and the lender for example a bank or building society is entitled to sell the house because of the landlord s failure to keep to the conditions of the loan. Page 15 of 34

16 Ground 3 is that the house was let for a specified period of eight months or less, having been occupied as a holiday home during the previous 12 months. Ground 4 is that the house was let for a specified period of 12 months or less, having been let to students by a specified educational institution during the previous 12 months. The educational institutions concerned are specified by Scottish Ministers. Ground 5 is that the house is let to a minister or full-time lay missionary in connection with their work and is required for that purpose. Ground 6 is that the landlord requires possession in order to demolish or substantially reconstruct the house, or to carry out substantial improvement work on the house, and that the work can be done only if the tenant gives up possession, or (if the work could have been done if the tenant agreed either to a change in the terms of their tenancy or to accept a tenancy of only part of the house) the tenant has refused the alternative. This ground does not apply if the landlord became the landlord after the tenancy began through buying the house in question or acquiring it in exchange for anything of value. If possession is granted on this ground, the landlord must pay the tenant s reasonable expenses of removing. Ground 7 is that the tenancy has been succeeded to by the new tenant under the will or intestacy (disposal of property where no valid will was left) of the original tenant. If possession is sought under this ground, proceedings must take place within 12 months of the death of the original tenant or of the date on which the landlord learned of this death. If the landlord accepts rent from a new tenant, this will not affect the landlord s right to repossess unless they agree in writing to a new rent or to a rent change in the tenancy agreement. Ground 8 is that at least three months rent is in arrears both on the date on which the notice of intention to seek possession was served and at the date of the court hearing. Ground 9 is that suitable alternative accommodation is available or will be available for the tenant when repossession takes place. Ground 10 is that the tenant has given Notice to Quit that has expired but he has not moved out. The landlord must seek an order for possession on this ground not later than six months after the expiry of the tenant served the Notice to Quit. Ground 11 is that the tenant has persistently delayed paying rent. Ground 12 is that some rent is unpaid at the start of court proceedings and when the notice of intention to take possession proceedings is served. Ground 13 is that the tenant has broken or not performed any obligation of the tenancy (except payment of rent). Page 16 of 34

17 Ground 14 is that the tenant or anyone living with them has allowed or caused damage to the house or common parts of the building in which the house is situated. Ground 15. The tenant, a person residing or lodging in the house with the tenant or a person visiting the house has: (a) been convicted of using or allowing the house to be used for immoral or illegal purposes; or an offence punishable by imprisonment committed in, or in the locality of, the house; or (b) acted in an anti-social manner towards a person living, visiting or otherwise engaging in lawful activity in the locality; or (c) pursued a course of anti-social conduct towards such a person as is mentioned in (b) above. In this ground anti-social, in relation to an action or course of conduct, means causing or likely to cause alarm, distress, nuisance or annoyance, conduct includes speech; a course of conduct must involve conduct on at least two occasions; and tenant includes any one of joint tenants. Ground 16 is that the tenant or anyone living with them has damaged the furniture or allowed it to become damaged. Ground 17 is that the house was let to the tenant because they were employed by the landlord, and the tenant is no longer employed by the landlord. 11. Grounds 1 to 8 above are mandatory, which means that if they are proved the Sheriff must grant the landlord an order for possession. 12. Grounds 9 to 17 above are discretionary, which means that even if they are proved, the Sheriff will grant a landlord an order for possession only if he or she judges it reasonable to do so. 13. Grounds 1 and 2 can apply only if the landlord gave the tenant notice in writing before the start of the tenancy that possession might be recovered on this ground, unless the Sheriff judges it reasonable to set aside the requirement. 14. Grounds 3, 4 and 5 can apply only if the landlord gave the tenant notice in writing before the start of the tenancy that possession might be recovered on this ground. Notice to Quit, Notice of Proceedings and Section 33 Notice 15. Under an assured tenancy, if a landlord wishes to repossess their property they must take the following steps: Serve the tenant with a Notice to Quit. Page 17 of 34

18 Serve the tenant with a Notice of Proceedings. 16. A Notice to Quit is a written document notifying the tenant that the landlord wants to end the tenancy. The length of notice depends on how long the tenancy is for. If the tenancy lasts more than four months, the notice period must be at least 40 days; and if the tenancy lasts four months or less, the notice period must be at least 28 days. 17. The landlord must also send the tenant a Notice of Proceedings. This tells the tenant that their landlord wants to start legal proceedings to get their property back. The required length of notice before the landlord can take legal action is two weeks or two months depending on which of the 17 grounds the landlord has stated. 18. However, If the tenancy is a short assured tenancy and the landlord wants the tenant to leave simply because the tenancy has reached the end of the normal contractual period, they must issue a Section 33 Notice in place of a Notice of Proceedings. 19. If a landlord issues a Notice to Quit but does not seek to gain possession of the property, the contractual assured tenancy that has been terminated will be replaced by a statutory assured tenancy, which gives the tenant different rights. Page 18 of 34

19 PROPOSED NEW TENANCY 20. The Scottish Government's overall aim for the proposed new private rented sector tenancy system is to improve security of tenure for tenants, while giving suitable safeguards for landlords, lenders and investors. We are committed to developing a new system that strikes a fair balance between the interests of tenants and landlords, and supports a professionally run sector that is managed for the long-term benefit of landlords and lenders, as well as tenants. We will continue to promote the actions set out in the PRS Strategy, including enabling and encouraging growth and investment. 21. As stated earlier, the Review Group had one main recommendation for Ministers, namely that the current tenancy regime for the Private Rented Sector, the Short Assured Tenancy and the Assured Tenancy, be replaced by a new private tenancy that covers all future PRS lets. The Review Group also offered the following suggestions: Modernising and simplifying the right of possession. Removing outdated repossession grounds. Tackling confusion over ish dates 7 and the issuing of pre-tenancy and multiple notices. The new tenancy will keep a minimum lease period of six months. Introducing new roll-over arrangements for tenancy agreements. Introducing a new model tenancy agreement. 22. In the light of the Review Group s findings, we have developed an outline for a new type of PRS tenancy in Scotland, which we detail below. This paper seeks your views on our outline. 7 See footnote 6 on page 12. Page 19 of 34

20 AT A GLANCE SUMMARY OF THE PROPOSED NEW TENANCY SYSTEM IMPROVING TENANTS SECURITY OF TENURE Subject Current provisions Proposed new provisions No-fault ground for repossession Under a short assured tenancy, landlords can reclaim their property simply because the fixed term has ended. This is called the no-fault ground for repossession. The no-fault ground for repossession will be removed. Tenancy rollover arrangements Length of tenancy Tenancies can roll over on a monthly basis after the initial lease period expires. Under a short assured tenancy, the shortest tenancy duration is six months. There is no minimum for an assured tenancy. Tenancies cannot roll over for a duration less than the original tenancy agreement. Landlords must offer a minimum tenancy of six months. No maximum is proposed. A tenant will be able to request a tenancy agreement shorter than six months to meet their personal circumstances, e.g. a seasonal or travelling worker. Notice to Quit periods Currently landlords and tenants must give each other Notice to Quit of between 28 and 40 days. The Notice to Quit period will be linked to how long the tenant has lived in the property. Landlords will have to give tenants the following notice: Six months or less in the property = four weeks notice Over six months up to two years in the property = eight weeks notice Over two years up to five years in the property = 12 weeks notice Over five years in the property = 16 weeks notice Page 20 of 34

21 SAFEGUARDS FOR LANDLORDS, LENDERS AND INVESTORS Subject Current provisions Proposed new provisions Grounds for repossession There are 17 grounds under which a landlord can repossess their property. About half of these are mandatory in other words, the court must give a possession order if the ground is proved. The rest are discretionary. All need a sheriff s court order. Reduce the number of grounds for possession to eight, all of which will be mandatory. The new proposed repossession grounds are: 1. landlord wants to sell the home 2. mortgage lender wants to sell the home 3. landlord wants to move into the home 4. refurbishment 5. change to the use of the home 6. tenant failed to pay three full months rent 7. tenant is anti-social 8. tenant has otherwise breached the tenancy agreement. Under the Housing (Scotland) Act 2014, all civil PRS cases will now be considered by the First Tier PRS Tribunal rather than a sheriff. Shorter Notice to Quit period in certain circumstances No current provisions. If repossession grounds 6, 7 or 8 above apply, landlords will be able to give tenants 28 days Notice to Quit regardless of how long the tenant has lived in the property. Pre-tenancy notices Notice of Proceedings Landlords must give advance notice to tenants if they intend to use some of the repossession grounds. The length of notice required before a landlord can take legal proceedings is two weeks or two months, depending on the ground being used. Pre-tenancy notices will not be required. A standard four-week notice period will be required before proceedings can be raised. Page 21 of 34

22 Notice to Quit Model tenancy agreement Currently landlords and tenants must give each other Notice to Quit of days. No prescribed tenancy agreement. Tenants will be have to give landlords the following notice: Six months or less in the property = four weeks notice. Over six months in the property = eight weeks notice We will introduce a model tenancy agreement containing mandatory and discretionary clauses and a statutory guidance note that outlines the clauses in plain language. This will remove the need to issue a Tenant Information Pack, so we propose to remove this requirement. Page 22 of 34

23 WE WANT TO IMPROVE TENANTS SECURITY OF TENURE BY APPLYING THE PROPOSALS IN PARAGRAPHS 25 TO 44. Scope of new tenancy system 23. The new type of tenancy, including all the proposed provisions below, will replace the current assured tenancy system for all future lets. The new type of tenancy will not include regulated tenancies that existed before 1989 or the current exceptions that apply to the assured tenancies (listed in paragraph 4). 24. To ease the change-over, we will bring in transitional arrangements for people who are currently using the assured tenancy system. No-fault ground for regaining possession 25. After the initial let period of a short assured tenancy, the landlord may reclaim possession of the property. The landlord does not need to give any reason except that the fixed term is ending. 26. As we developed the recent PRS Strategy, stakeholders highlighted two key issues of the system: security of tenure and length of tenancy. However, stakeholders views were mixed on the case for reform. 27. The Review Group s report does not say whether we should keep or remove the no-fault grounds for repossession. But it does suggest that the new tenancy system should contain a modernised and simplified right of possession An important policy matter is to tackle the growing demand for private rented housing from a range of household types. This range includes people who will continue to want flexibility from the sector and those who want to settle in the sector longer-term. 29. Tenants should feel secure in their homes. We think security can be undermined by landlords freedom to ask tenants to leave without reason. We want tenants to be confident about asking their landlord to do necessary repairs without fear of being asked to leave at the end of the lease period. 30. Accordingly, we propose removing the no-fault grounds for regaining possession of a property. This means a landlord would no longer be able to ask the tenant to leave the property simply because the tenancy agreement had reached its end date. Instead, the landlord would have to use one of the proposed new grounds for recovering possession listed in paragraph 52. PLEASE PROVIDE YOUR RESPONSE TO THIS CONSULTATION USING THE SEPARATE CONSULTATION ANSWER FORM Question 1: Do you agree that the no-fault ground for a landlord to repossess their property should be excluded from the new tenancy system? Page 23 of 34

24 Tenancy roll-over arrangements 31. The Scottish Government recognises that the private rented sector in Scotland is diverse with a broad customer base. It has several niche markets that cater for particular people such as students, young professionals, migrants and lowerincome households. 32. The sector is valued as a housing option that offers flexibility. More families now live in the sector, too. And it has an increasing role in providing homes to couples with children and to lone-parent households. 33. The Review Group said that sorting out the roll-over arrangements, or having a requirement to issue a new tenancy, within a defined period, will be more important to tenants and landlords. 34. The current system enables tenancies to roll over on a month-to-month basis, after the end of the initial lease period, if stated in the tenancy agreement. 35. The Scottish Government thinks one month s notice offers tenants little time to make other arrangements. Additionally, if a tenancy has been working well, it seems reasonable to offer a tenant the extra security of at least another sixmonth tenancy. 36. We therefore propose that the new system will not enable tenancies to roll over on a monthly basis or indeed any other basis that offers a shorter duration than the current tenancy agreement. This means that at the end of the initial lease period, if no Notice to Quit has been issued, either automatic renewal (technically called tacit relocation ) will apply or a new contractual tenancy will be needed. Automatic renewal means the term of a lease runs out and the tenancy renews itself on the same terms and conditions. Question 2: Do you agree that the ability to roll over tenancies on a monthly basis should be excluded from the new tenancy system? Page 24 of 34

25 Length of tenancy 37. There has been much debate on length of tenancies, particularly during the recent Parliamentary stages of the Housing (Scotland) Act 2014, where MSPs lodged several non-government amendments on tenancy length. 38. The Review Group reported to Ministers that the new tenancy would set a minimum period, as is currently the case so the minimum could stay at six months.... The Review Group did not suggest a maximum duration for a tenancy. 39. We know that some tenants think minimum tenancies should be longer. However, others are keen to keep the current system s flexibility. 40. We therefore propose a new type of tenancy for all future lets, which has a minimum duration of six months. We do not propose a maximum duration. 41. We know that some tenants, e.g. travelling or seasonal workers, may want a tenancy of less than six months. They will be able to request a shorter tenancy period from the landlord, who will decide whether to accept the request. But a landlord will not be able to offer a tenancy shorter than six months unless the tenant specifically requests it. Question 3a: Do you agree that the new type of tenancy should have a minimum duration of six months? Question 3b: Do you agree that the tenancy should have no maximum period? Question 3c: Do you agree that a tenant should be able to request a shorter tenancy? Page 25 of 34

26 Notice to Quit from landlords to tenants 42. A Notice to Quit is a written document notifying the tenant that the landlord wants to end the tenancy. The length of notice depends on how long the tenancy is for. Currently if the tenancy lasts for more than four months, the minimum notice period is 40 days; and if the tenancy lasts for four months or less, the notice period is at least 28 days. 43. The Scottish Government considers that where a tenant has been living in a property for a long time, it would be reasonable for the tenant to receive a longer period of Notice to Quit from the landlord. 44. We therefore propose to link the notice period with how long the tenant has been living in the property using a sliding scale. We propose that landlords will use the following Notice to Quit periods for tenants: Less than six months in the property = 28 days notice (four weeks). Six months or more, but less than two years in the property = 56 days notice (eight weeks). Two years or more, but less than five years in the property = 84 days notice (12 weeks). Five years or more in the property = 112 days notice (16 weeks). Question 4a: Do you agree that the notice period should be linked to how long the tenant has lived in the property? Question 4b: Do you agree with the four proposed notice periods? Page 26 of 34

27 WE WANT TO GIVE LANDLORDS, LENDERS AND INVESTORS SUITABLE SAFEGUARDS BY APPLYING THE PROPOSALS IN PARAGRAPHS 47 TO It is vital that the new tenancy system strikes the right balance between the interests of landlords, lenders, tenants and investors. 46. The Scottish Government knows that landlords seek return on investment and income from rent and wants to ensure that the new tenancy can help provide these. We do not wish to jeopardise the availability of buy-to-let financing, or make the terms of any financing far less advantageous. Equally we want to continue to encourage institutional investment in the sector to help boost the supply of much-needed homes for private rent. Grounds for repossession 47. The majority of disputes between landlords and tenants are handled by the sheriff court, including repossessions. We estimate that the sheriff courts currently handle about 500 repossession cases each year. 48. However, we know that stakeholders have expressed concerns that cases take a long time to reach court and then often suffer delays. Stakeholders have also suggested that some sheriffs have more experience of housing disputes than others, which results in inconsistent and unpredictable decisions. 49. The Housing (Scotland) Act 2014 tackles these concerns by saying that all private rented sector civil cases will be heard by the PRS Tribunal not the sheriff courts. The PRS Tribunal will be part of the new First-tier Tribunal, created under the Tribunals (Scotland) Act This will allow more effective and efficient resolution of disputes between tenants and landlords. The key benefits of the Tribunal will be specialism, consistency and accessibility, improving access to justice for both tenants and landlords. 50. The PRS Tribunal will be able to make the same orders as the sheriff courts. For example, sheriffs can make orders to evict tenants and the PRS Tribunal will be able to do the same. The basis for raising a case and the matters to be taken into account will remain the same. 51. However, the Scottish Government considers that the 17 current grounds (listed in paragraph 10) under which a landlord can regain possession of their property are outdated. For example, some grounds attract a mandatory court order and others a discretionary order. 52. We propose that the new tenancy regime includes the following mandatory grounds for repossession: Landlord wants to sell. Mortgage lender wants to sell because the landlord has broken the loan s conditions. Landlord or family member wants to live in the property. Refurbishment. Page 27 of 34

28 Change of use. Tenant has failed to pay full rent over three months. Tenant has displayed antisocial behaviour. Tenant has otherwise broken their tenancy agreement. Question 5a: Do you agree that all the proposed repossession grounds should be mandatory? Question 5b: Do you agree with the proposed list of new repossession grounds? Question 5c: Are there other repossession grounds we should include in the list? Shorter Notice to Quit period in certain circumstances 53. The Scottish Government knows that, for some of the proposed new grounds above, landlords are likely to want to regain repossession of their property as quickly as possible. We therefore suggest that the new tenancy regime will enable landlords to recover their property by giving tenants 28 days Notice to Quit, regardless of how long the tenant has lived in the property, if the tenant has: failed to pay full rent over three months displayed antisocial behaviour otherwise breached their tenancy agreement. Question 6: Do you agree that landlords should be able to recover possession of their property with a 28-day notice period in the circumstances listed above? Page 28 of 34

29 Pre-tenancy notices 54. Under the current assured tenancy system, landlords must provide advance notice to tenants if they intend to use repossession grounds 1 to 5 to regain possession of their property (see paragraphs 10, 13 and 14). 55. The Review Group suggested that the new tenancy needs to address the confusion over the issuing of pre-tenancy notices. 56. As we are proposing the new grounds for repossession in paragraph 52, we do not think a landlord needs to issue a pre-tenancy notice to a tenant to say they may recover possession under any of the new grounds. Question 7: Do you agree that landlords should no longer have to issue pre-tenancy notices to recovery possession of their property? Notice of Proceedings 57. As we say in paragraph 17, a Notice of Proceedings is a document telling the tenant that their landlord wants to start legal proceedings to get their property back. The length of notice needed before the landlord can take legal action will depend on which of the 17 grounds the landlord has stated. A notice period of either two weeks or two months will apply. 58. To simplify this process we propose introducing a four-week minimum notice period that a landlord must give a tenant before raising proceedings under any of the new grounds listed in paragraph 52. Question 8: Do you agree that the notice period for all proceedings should be four weeks? Page 29 of 34

30 Notice to Quit from tenants to landlords 59. We set out a proposed sliding scale for landlords giving notice to tenants in paragraphs 43 to 44 In line with this, we propose that tenants will have to give landlords the following notice to quit the tenancy: Less than six months in the property = 28 days notice (four weeks). Six months or more in the property = 56 days notice (eight weeks). 60. Therefore, if a tenant wishes to leave the property at the end of their tenancy agreement, the tenant will need to tell their landlord either four or eight weeks in advance. If a tenant wishes to leave the property before their tenancy agreement expires, and this is not covered in the tenancy agreement, they will need to get the landlord s permission, as now. Question 9: Do you agree with the proposed timescales for a tenant giving notice to a landlord to leave the property? Model tenancy agreement 61. The Craigforth report found a clear consensus that the documentation associated with setting up a tenancy can be both lengthy and complicated, with smaller or newer landlords more likely to express anxieties about the tenancy documentation. The report also states that given the difficulties some respondents reported with understanding tenancy documentation, it is perhaps unsurprising that many supported the idea of some type of model tenancy document. 62. The PRS Review Group s report suggests introducing a new single tenancy document. This would: state all the current statutory requirements for a private tenancy as detailed in all the relevant legislation include a section for any extra clauses specific to the property and parties involved, and come with a prescribed statutory guidance note that would further explain all the provisions in the document. These three elements would together form the tenancy agreement. 63. This could mean, for example, that the tenancy document could automatically include: the landlord registration requirements the repairing standard the defined building requirements/standards Page 30 of 34

31 the details of the rights that apply to both parties and how to enforce them the contents of the Tenant Information Pack expectations. 64. We therefore propose introducing a requirement to use a model tenancy document for all future private rented sector lets. This could provide consistency of practice across the sector and help ensure that it provides good-quality and well-managed housing. It could also help promote landlords and tenants knowledge of their rights and responsibilities. Question 10: Do you agree that a model tenancy agreement, as described above, should be introduced? Page 31 of 34

32 RENT LEVELS 65. Currently, for all assured tenancies the rent is market led. The rent will usually depend on such factors as the type of house; where it is located; whether it is furnished or unfurnished; its general condition; the services provided by the landlord; and the demand for housing in that area. During a tenancy the level of rent increase can be negotiated between the tenant and landlord. However, for shorter assured tenancies the rent level often remains fixed throughout the tenancy. Current provisions on rent levels in the Housing (Scotland) Act In certain circumstances, a Private Rented Housing Committee can be asked to say what a market rent would be. Section 25 of the Housing (Scotland) Act 1988 (the 1988 Act) currently enables a tenant with a statutory assured tenancy, and whose landlord has served them with a rent increase notice with the relevant notice period, to refer a case to a Private Rented Housing Committee for a ruling on the rent level. The 1988 Act also says that any rent increases under a statutory assured tenancy must be at least a year apart. 67. Additionally, Section 34 of the 1988 Act enables tenants with a shorter assured tenancy to apply to a Private Rented Housing Committee for a ruling on the rent which, in the Committee s opinion, the landlord might reasonably be expected to charge under the tenancy agreement. Context 68. Rent setting currently forms part of the existing assured tenancy system, so it seems sensible to consider rent setting and how this might work with the proposed new system. 69. The Scottish Government has been closely monitoring private-sector rent levels nationally and locally and knows that actual rents can vary considerably across Scotland. 70. The evidence below outlines recent trends in Scotland s average rents. We are keen to seek your views on this and what it means for the private rented sector in Scotland and the proposed new tenancy system. Current evidence The latest Office for National Statistics index figures on rent levels estimate that Scotland has seen a 1.1% annual increase in private rents in the 12 months to June 2014 (compared to 1.0% for Great Britain as a whole). As of June 2014 private rents in Scotland are 3.6% higher than at the start of 2011 (compared to 4.1% for Great Britain as a whole) 8. This Office for National Statistics index is based on rent data collected by the Rent Service Scotland. 8 Index of Private Housing Rental Prices, July 2014, Office for National Statistics, Available at: Page 32 of 34

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