Reform of legislation relating to Scotland's private rented housing sector has been welcomed by the Faculty of Advocates, subject to certain concerns, in its written submission to MSPs on the Private Housing (Tenancies) (Scotland) Bill.
While not commenting on the social policy issues raised by the bill, Faculty argues that new legislation is desirable because the previous statutory regimes of 1984 and 1988, which attempted to impose restrictions on an essentially common law system, resulted in "confusion and lack of clarity amongst landlords, tenants and their professional advisers, in particular in relation to security of tenure". This frequently led to eviction actions being delayed and/or dismissed on technical grounds rather than on their merits, thereby impairing access to justice.
On its points of concern, Faculty considers it “undesirable” that tenants would have no right to end a tenancy during its initial period, usually six months. If the landlord is in breach of a fundamental term, such as the duty to provide vacant and undisturbed possession, or a property reasonably fit for habitation, the tenant ought to be able to bring the tenancy to an end.
It also disagrees with the landlord's ability to terminate a tenancy during the initial period if they wish to sell the property, which Faculty believes is open to abuse by a landlord wishing to remove a tenant prematurely. "The principle of legal certainty ought, in our view, to entitle tenants to expect a landlord to honour the initial period of a lease, provided that they are not themselves in breach of the agreement", the submission states.
Faculty is also concerned that landlords would have to wait as long as four months to seek eviction for non-payment of rent, since a month's notice would be required as well as the three month arrears period. This is "likely to be a significant burden on small businesses in particular", it argues.
But it is not convinced it is appropriate to allow a tenant to be evicted for antisocial behaviour simply where it "causes another person annoyance", as the ground could be satisfied where the other person has an "unreasonably low threshold for becoming annoyed".
Having different grounds for early termination of a tenancy, and for a shortened notice period, is also an "unnecessary complication".