Since 7 April 2020, the duration that must be stated in a “pre-irritancy notice”, as the notice required under s 4(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 is known, for a tenant to make payment of outstanding arrears, in terms of that provision, is 14 weeks. That follows from the provisions of the Coronavirus (Scotland) Act 2020, sched 7, paras 6 and 7 (“2020 Act’s irritancy provisions”), which increased the duration stated in s 4 of the 1985 Act from 14 days to 14 weeks.
The 2020 Act will remain in force until 31 March 2021, as a result of the recently enacted Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 (SSI 2020/299), reg 2. This means that, unless either (i) an early expiry statutory instrument is passed for the 2020 Act's irritancy provisions (to repeal them in their entirety); or (ii) a statutory instrument reducing the time period of 14 weeks incrementally, whilst the 2020 Act's irritancy provisions remain in force (because the 2020 Act's irritancy provisions give Scottish ministers such a power in terms of the temporary s 4(3A) of the 1985 Act), the 14 week period for irritancy will remain until at least 31 March 2021.
The extension to the extension of the duration of pre-irritancy notices provides an appropriate point at which to recall some of the key points that need to be borne in mind in their preparation.
A reminder of some key points
First, the terms of the 1985 Act must be considered alongside the provisions of the lease. For example, if the lease has a deemed service provision, existing case law suggests the deemed service time frame must be factored into the date on which the 14 week duration expires; a failure to do so would invalidate the pre-irritancy notice: see Wing Wai Ma or Choi v Henry Tse & Co Ltd (case ref A1003/08, Edinburgh Sheriff Court, 10 February 2009, available on Westlaw).
Secondly, the terms of the 1985 Act require a pre-irritancy notice to be sent by recorded delivery service offered by the Royal Mail: Kodak Processing Companies Ltd v Shoredale Ltd  CSIH 71; 2010 SC 113, paras 28-29. The Inner House held that this was the meaning of the words “recorded delivery” in s 4(4) of the 1985 Act; it did not simply permit use of any form of delivery for which a record was made: paras 29-30.
This will understandably be frustrating in the event that the Track and Trace system does not confirm whether delivery of the notice has actually been made, which appears to be a more common issue since COVID-19. The “sufficiently served” provision of the 1985 Act should address this concern: see s 4(4), and also see the remarks of the sheriff at first instance (unreported), cited in Sheriff Principal Stephen’s judgment in Edinburgh Tours Ltd v Singh 2012 Hous LR 15, at para 30.
In Kodak, the Inner House suggested (at para 31) that it would alternatively be open to a party to send the notice by recorded delivery and, at the same time, by other means, intimate to the appellants a copy of that notice, with an explanation as to the possibility that it (by which the Inner House presumably meant the notice sent by recorded delivery) might be received late.
The reason in Kodak that a notice sent by recorded delivery might have been received late was because of a postal strike at the time.
Thirdly, the terms of the pre-irritancy notice must set out what the tenant “has to do and within what period”: Inverclyde Council v McCloskey t/a Prince of Wales Bar 2015 SLT (Sh Ct) 57, para 63; Scott v Muir 2012 SLT (Sh Ct) 179, para 41. It must specify a period within which the tenant must make payment of the outstanding rent. This should be read as a requirement to set out a deadline or time limit by which the tenant must comply with what is demanded by the notice: Scott v Muir at para 41.
There is conflicting case law on whether there is a requirement to set out the duration over which the rent arrears have accrued. Sheriff Principal Stephen held that there was in Scott v Muir, paras 43 and following, whereas Sheriff Principal Murray in Inverclyde Council disagreed, as there was no basis for this in terms of the statute: para 74. Caution may be the best approach here (as the Practical Law practice note on irritancy of leases suggests). A schedule or statement of arrears totalling the amount set out in the notice and showing the dates on which they fell due could be enclosed with, and incorporated into, the notice. Alternatively, the date range could be stated within the notice itself.
Where do we go from here?
Returning to the present, at some point the duration of 14 weeks for the pre-irritancy notice will have to be tapered down incrementally, back towards the previous 14 day period. The Scottish Government’s statement of reasons for extending the 2020 Act’s irritancy provisions to 31 March 2021, at para 5.13.3, provides: “Expiring the provision in September 2020 would also have the slightly perverse effect of allowing earlier evictions than was possible when the measure was in force. For example, a landlord serving an eviction notice on 29 September 2020 could not regain possession until 5 January 2021, while reverting to the 14 day period would mean eviction would be possible on 15 October 2020 if notice was served on 1 October 2020.”
It is correct that this would have a perverse effect. The statement of reasons goes on to say, at para 5.13.7, that: “Alternative approaches have been considered and the only alternative is to expire the provision. A decision not to extend would rely on negotiation between landlords and tenants to provide a solution, leading to inequality and uncertainty of treatment. In the circumstances, no alternative to retaining the primary legislation exists.”
It is true that at the point when an extension to the 2020 Act's irritancy provisions was being considered (as part of an extension of the Act as a whole), there was only a choice between extension or expiry. But it is important to recognise that this does not mean there is only a choice between 14 days and 14 weeks: s 4(3A) of the 1985 Act provides for flexibility, presumably with the sole intention of allowing for a tapering down of the 14 week period, to avoid the “slightly perverse effect” noted in para 5.13.3 of the Scottish Government’s statement of reasons, but only for so long as the 2020 Act's irritancy provisions remain in force. It might have been desirable to recognise and refer to s 4(3A) in the statement of reasons.
In any event, if the tapering down of the 14 week period does not occur before the 2020 Act expires, for it can only (at present) be extended to 30 September 2021 in terms of s 12(3)(b), primary legislation will be required to provide such regulation making power under s 4 of the 1985 Act to the Scottish ministers to allow for this tapering down beyond 30 September 2021.
Kieran Buxton, solicitor and professional support lawyer, Davidson Chalmers Stewart LLP, and ordinary course tutor, University of Edinburgh
The views expressed above are those of the author, not those of his employers, and do not constitute legal advice