Over the last few years, the Scottish Government has taken a number of steps to amend the law surrounding residential tenancies in Scotland.
Recently, the Scottish Parliament voted to approve Regulations laid by the Scottish Government which extend the lifespan of the temporary protections introduced by the Cost of Living (Tenant Protection) (Scotland) Act 2022.
The provisions of the 2022 Act were initially set to expire on 31 March 2023. However, the Act contained provisions allowing the Scottish Government to extend the lifetime of the Act by two successive periods of 6 months.
In January of this year, the Act was extended to cover the period until 30 September 2023. Then, earlier this month, regulations were laid to further extend this until 31 March 2024.
In light of this latest extension, it may be helpful to briefly recap the temporary protections introduced by the 2022 Act. The most impactful of these can be broadly grouped into two categories; protection from evictions and rent controls.
Protection from Evictions
In Scotland, there are a number of different types of tenancy, each with their own regimes. A full summation of how they are each affected by the 2022 Act is outwith the scope of this article, which focuses on the Private Residential Tenancy.
In order to evict a tenant, a landlord must first obtain an eviction order from the First-Tier Tribunal for Scotland. Under the temporary measures of the 2022 Act, a landlord who is granted an eviction order must pause and wait until the earlier of (i) 6 months from the date of that eviction order or (ii) 31 March 2024 before they are able to enforce that eviction order.
There are some cases where this moratorium will not apply. For example, if an eviction order is granted on the grounds of the criminal or anti-social behaviour of the tenant, then the landlord can proceed to enforce their order in the usual manner, without delay.
The 2022 Act also introduced some temporary new grounds for eviction as a counterbalance. For example, the 2022 Act has introduced a new ground which applies in circumstances where the landlord intends to live in the let property to alleviate financial hardship. Therefore, if the landlord is able to show that they are themselves suffering financial hardship and need to live in the let property as a result, they can rely on this new ground to obtain an eviction order and can then proceed to enforce this eviction order in the usual manner, without delay.
The 2022 Act also introduced provisions which restricted the ability of landlords to increase the rent payable under a tenancy.
In respect of Private Residential Tenancies, the rent can only be increased in line with a set procedure. Very broadly, a landlord must serve a rent increase notice on the tenant at least three months before the date on which the increase is set to take place. The tenant can refer this increase to a rent officer, who has the power to set the rent that is to be payable under the tenancy, having regard to the open market rent.
The 2022 Act introduced temporary amendments to that set procedure. One such amendment was a cap on the amount by which rent could be increased. This cap is currently 3%.
Landlords can also apply to the rent officer to raise the rent above the permitted rate where they can demonstrate that they have incurred increased property costs (for example, increased interest payable on their mortgage). If the application is successful, then a rent increase of up to 6% could be permitted. Landlords can appeal the decision of rent officer to the First-Tier Tribunal.
These provisions discussed above cannot be extended beyond 31 March 2024. However, in early September, the First Minister pledged to introduce a new Housing Bill within the course of the next year, which would contain, among other things, long-term rent controls and new rights for tenants. It may therefore be that some of the temporary protections introduced by the 2022 Act find a more permanent home in future, although this is yet to be seen.