Private rented sector proposals need more work, Faculty claims

Much work still needs to be done on Scottish Government proposals for major reform of the private rented housing sector, according to the Faculty of Advocates.

In its response to the recent Scottish Government consultation paper proposing a new private tenancy in place of the present assured and short assured tenancy arrangements (click here for news item), the Faculty says the paper contains some interesting ideas, but they are currently underdeveloped.

"Statutory regulation of tenancies is a complex area and at present the law suffers from a number of uncertainties and difficulties, some of which are due to the earlier legislation", the Faculty states.

"The consultation paper contemplates major changes to the current system which require careful consideration in order to achieve the policy objectives. The Faculty considers there is still much work to be done and that appropriate time should be taken to develop this legislation."

An important area of change relates to repossession. Currently, there are 17 grounds under which landlords can repossess properties, about half of which are mandatory. Under the reforms, the number of grounds for possession would be cut to eight and all would be mandatory. Faculty believes this would be "insufficiently flexible", and the proposed grounds are "extremely cursory and will presumably require to be expanded in any legislation".

For some proposed grounds, such as "landlord wants to sell", or "refurbishment/change of use", Faculty points out that means must be found to ensure that a landlord's intentions are genuine.

Another proposed ground is "antisocial behaviour/breach of tenancy agreement", and the Faculty highlights a risk that tenants could lose their homes for a single, trivial incident.

"That seems contrary to the policy objective of affording tenants greater security of tenure", it notes. "There seems to be an inconsistency between the high bar being set for an eviction on the ground of rent arrears, and the low threshold for eviction on the ground of 'antisocial behaviour/breach of tenancy agreement'.

"One might consider stating the grounds in such a way that they would only be established in a case in which the conduct in question amounts to a serious breach of contract which is such as to justify termination (i.e. equivalent to a 'material breach' at common law). However, this may not be too different from requiring that it be reasonable to grant an order.

"In conclusion, the creation of 'antisocial behaviour/breach of tenancy agreement' as a mandatory ground, excluding the exercise of any judicial discretion or judgment in the case of trivial breaches, appears contrary to the policy objective and to the interests of justice."