Residential property matters regarding the recovery of possession applications have been dealt with by the Housing and Property Chamber of the First Tier Tribunal for Scotland for several years. The main benefits of the Tribunal for tenants and landlords has been the ease of accessibility to justice and the low costs.
Recent statistics have however revealed that in the third year of the Tribunal, 32% of applications were unsuccessful due to technical failings. These technicalities included landlords failing to serve Notices to Leave correctly due to:
- giving the incorrect notice period
- providing no date in the notice
- using the wrong form
- failing to include pertinent details such as addresses.
Applications also failed where:
- the wrong grounds were used
- the required notices such as the Section 11 Notices had not been issued to the Local Authority
- applicants failed to provide information requested by the Tribunal.
The result of these failings is that landlords making such mistakes will find themselves in a position whereby they have to start the whole process all over again and serve fresh Notices on tenants to recover possession of a property.
Failing to get a Notice right at the outset and only discovering this once Tribunal proceedings have been raised can cause considerable delays to a landlord recovering possession of a property. This will also often be at considerable financial loss to the landlord, particularly where rent arrears are continuing to accrue.
Such a delay would not be insignificant during ordinary times but since the introduction of the Coronavirus Act (Scotland) 2020, delays are substantially longer owing to the extended notice period which must now be given to tenants.
A case example
A landlord is serving the requisite Notice to Leave on a tenant where there are 3 months’ worth of arrears of rent. The notice period on the basis of arrears of rent has been extended to six months by the Coronavirus legislation.
If the tenant fails to vacate at the end of the notice period, the landlord will have to raise an application at the Tribunal for recovery of possession. It may only be at the point where the application is processed by the Tribunal that an error in the Notice to Leave is brought to the landlord’s attention.
The Tribunal’s final decision to reject the application on the basis of such an error might take a further month or so depending on how quickly it is able to process applications at that time. If the application is ultimately rejected, the landlord must serve a fresh Notice to Leave and thus provide a further six-month notice period to the tenant before an application can again be submitted to the Tribunal for recovery of possession.
In such a scenario and where a tenant continues to accrue arrears of rent, the landlord could be facing a situation where the arrears of rent are well in excess of the equivalent of 12-months rental charge.
The impact of the CSA regulations
The introduction of the new Coronavirus legislation has no doubt caused confusion even for the most seasoned of landlords. For those not familiar with the changes, getting a Notice to Leave right will prove to be difficult.
The changes do not just apply to private residential tenancies, but also to assured and short-assured tenancies. There have also been changes in addition to notice periods such as ordinarily mandatory grounds becoming discretionary and regulations outlining certain steps which must be taken by landlords before the Tribunal will consider granting an order to recover possession.
We would anticipate more technical failures being identified by the Tribunal in the year to come on the basis of all of the changes and requirements implemented over this past year.
Lindsays has been compiling articles throughout the past year dealing with the many changes in this area. You can access these articles using the links noted below:
Scottish Landlord ordered to pay wrongful termination order for the first time (18 Feb 2021)
New rules (for now) on residential tenancies (29 Oct 2020)
Scottish government prescribes pre-action requirements for rent-based residential evictions (4 Sep 2020)
Covid Guidance - FAQs for private landlords
Landlords issuing Notices without taking advice should exercise extreme caution in doing so given the complexities and multitude of changes to the relevant legislation. If you need advice on any such matters, please get in touch with a member of our team who can provide advice.