Housing (Scotland) Bill - use of powers: consultation analysis - final report

Chapter 3: ending joint tenancies in the private rented sector

The Bill creates a new route for the ending of a joint tenancy that does not require mutual agreement. At present ending a PRT requires the agreement of all joint tenants meaning that a person can be ‘trapped’ in a tenancy by other joint tenants, regardless of the circumstances, if agreement cannot be reached. Provisions in the Bill introduce an additional way to end the PRT in these circumstances.

Requirement for a pre-notice

Provisions in the Bill mean a joint tenant can end the tenancy for everyone, but only after they have given the other joint tenant(s) and the landlord at least 2 months’ notice. Under the Bill this notice is known as ‘a pre-notice’. After this minimum 2-month pre-notice period, the departing joint tenant would still have to serve the usual 28-day notice to leave on the landlord. The final 28-day notice must be served within 1 month of the pre-notice ending. The minimum 2-month pre-notice, plus the 28-day notice, will give tenants who need to find alternative accommodation a minimum of 3 months to find alternative accommodation. The Bill requires the pre-notice to:

i be in writing;

ii state that the joint tenant intends to bring to an end the tenancy by giving the landlord a notice under section 48(1) of the Private Housing (Tenancies) (Scotland) Act 2016; and

iii fulfil any other requirements prescribed by Scottish Ministers in regulations.

The consultation paper noted that the Regulations could, for example:

• Create a statutory form for the pre-notice, ensuring a consistent approach
• Ensure all joint tenants are provided with information about their rights and the stages of ending a joint tenancy without mutual agreement
• Require that the notice is given in a particular way, for example, recorded delivery or by sheriff officer

Question 32: What additional information do you think should be included in a 2-month pre-notice (for example, information on the process, signposting to advice and support available)?

Around 250 respondents answered Question 32. ‘Campaign’ respondents did not answer this, or any of the other questions, in this chapter.

Approach or process for ending a joint tenancy

‘Social landlord or their representative bodies’ respondents were among those advocating parity of approach with the social rented sector, and they raised concerns that the proposal would place a burden on private rented sector tenants. In terms of how an overall process should be framed, ‘Private landlord, letting agent or their representative bodies’ and ‘Professional or representative body’ respondents were among those suggesting that open dialogue between tenants and the landlord should be encouraged. However, some ‘Private landlord, letting agent or their representative bodies’ and ‘Developer or investor’ respondents stressed that the onus should be on the initiating tenant to inform and manage communications with other joint tenants and that the landlord’s role should be passive, unless a dispute arises.

In addition to the specific information that should be included in a 2-month pre-notice (discussed further below), there were also some general observations or suggestions relating to information provision. These included from a ‘Public body’ respondent who observed that the information provided should be inclusive and accessible with consideration given to literacy, various spoken and written languages, and digital literacy. Other suggestions about the general information that should be available included that:

• joint tenants should be provided with information relating to their rights and the requisite stages of ending their tenancy without mutual consent prior to signing their tenancy
• a flow chart could be used to the explain the procedure for ending a joint tenancy
• there should be information on how tenants can swap in another tenant so that they can remain in the property
• there should be information on appeals routes, with a reminder that disputes can be raised via the FTT

A range of respondents also highlighted the need for all the tenants involved to be signposted to independent advice and support services to ensure they understand their rights, the implications of a joint tenancy ending and potential future housing options. Advice and support services referenced included Shelter, Citizens Advice, local authority housing options services, and college and university housing support services. It was also suggested that:

• the remaining tenant(s) could benefit from money or welfare benefit advice, as the departure of one joint tenant may leave the other(s) in financial hardship
• tenants without capacity or tenants living in adapted/accessible housing will need tailored support
• signposting to information on specific legal mechanisms for removing a perpetrator of domestic abuse from a joint tenancy should be available

With reference to this latter point, it was noted that any risks of non-compliance with the pre-notice requirements that prolonged the tenancy for administrative reasons may be dangerous for individuals fleeing domestic abuse situations. It was suggested that the proposed stipulation that non-compliance with the final notice timeline requirements negates the pre-notice actions is concerning, because it may prolong an exit in such cases.

Contents of the pre-notice

General points, including from ‘Tenant, community group or union’ respondents, included that the pre-notice should clearly outline the process, timeline and implications for all parties, including the other tenants and the landlord. It was suggested that the pre-notice should:

• set out the options for both the tenant(s) receiving the pre-notice and the landlord
• explain what response, if any, they are required to provide
• make clear to both tenant(s) and landlord that they cannot block or prevent the serving tenant from bringing the current tenancy to an end, unless they have not used the required pre-notice form or have not given the required total 3-month notice period

‘Local authority’, ‘Private landlord, letting agent or their representative bodies’ and ‘Social landlord or their representative bodies’ respondents were among those providing specific suggestions on the contents of the pre-notice. These included:

• the names of all joint tenants, the name of the joint tenant giving notice, and the date the pre-notice is issued
• the property address and start date of the joint tenancy
• confirmation that it is a pre-notice of intent to end the joint tenancy, not a formal notice to leave and explaining that no immediate action is required from other tenant(s), but that a 28-day final notice will be served following the end of the 2-month notice period

There were mixed views on whether the pre-notice should include reasons for the departing tenant ending the tenancy. For example, ‘Local authority’ and ‘Professional or representative body’ respondents were among those suggesting that this information should be included. However, a ‘Private landlord, letting agent or their representative body’ felt that departing tenant should not have to provide an explanation as to why they wish to end the tenancy.

In relation to the other joint tenants, i.e. those who have not given notice that they intend to leave, it was suggested that they should be given information on:

• their right to remain in the property, subject to agreement with the landlord
• the deadline by which they must give notice if they also intend to move out
• the date of any new tenancy agreement which would be issued if they wish to remain at the property
• information on what their new rent would be, along with any other charges for which they would be liable

Question 33: Do you think a legal form (sometimes known as a prescribed form) should be created that a joint tenant must use for issuing the pre-notice?)

A total of 338 respondents, or 53% of non-campaign respondents, answered the closed element of Question 33. ‘Campaign’ respondents did not answer this question. Responses by respondent type are set out in Table 21 below.

Table 21: Question 33

Respondent type	Yes	No	Total
Advice organisation and third sector	6	2	8
Developer or investor	9	1	10
Local authority	12	0	12
Private landlord, letting agent or their representative bodies	25	6	31
Professional or representative body	3	0	3
Public body	1	0	1
Social landlord or their representative bodies	7	1	8
Tenant, community group or union	4	2	6
Total organisations	67	12	79
% of organisations	85%	15%	100%
Individuals	159	100	259
% of individuals	61%	39%	100%
All non-campaign respondents	226	112	338
% of all non-campaign respondents	67%	33%	100%
Campaign respondents	0	0	0
% of campaign respondents	0%	0%	0%
All respondents	226	112	338
% of all respondents	67%	33%	100%

A majority of those answering the question – 67% – thought a legal form should be created that a joint tenant must use for issuing the pre-notice. Organisations were more likely to think so than individuals (at 85% and 61% of those answering respectively).

Although the majority of each respondent group thought a legal form should be created and issued, a number of ‘Private landlord, letting agent or their representative bodies’, ‘Tenant, community group or union’ and ‘Advice organisation and third sector’ respondents were amongst those who did not think so.

Please explain your answer

Around 235 respondents explained their answer to Question 33.

Support for use of a prescribed form

‘Private landlord, letting agent or their representative bodies’, ‘Social landlord or their representative bodies’, ‘Developer or investor’ and ‘Individual’ respondents were among those who supported the use of a prescribed form, including because it would ensure clarity and consistency while promoting fairness, transparency and equal access to justice for tenants with varying degree of legal literacy.

An ‘Advice organisation and third sector’ respondent commented that the proposal would align with best practices in other areas of tenancy law, where prescribed forms are already used to ensure legal compliance and the protection of tenants. It was also suggested that a prescribed form could prevent incomplete or incorrect notices being issued and the consequent disruption for the joint tenants and landlords.

‘Private landlord, letting agent or their representative bodies’ and ‘Developer or investor’ respondents were among those commenting that a prescribed form would also provide a clear paper trail, while also ensuring that landlords are not required to interpret varying formats or levels of detail. From the landlord’s perspective, it was felt that receiving notices in various formats would make interpretation more time-consuming and potentially lead to administrative delays or disputes. It was also suggested that a prescribed form would allow housing advisors, other support agencies, and the FTT to assess the legitimacy and content of a notice easily and hence guide tenants more effectively.

From the tenants’ perspective, ‘Social landlord or their representative bodies’ respondents were among those hoping that a prescribed form could help avoid any non-compliance related delays, which could be critical if a tenant is unsafe, for example, in domestic abuse situations. An ‘Advice organisation and third sector’ respondent commented that creating an official record of a notice can be particularly important in cases where there may be a history of coercion or abuse.

Views from the consultation sessions

Tenant participants agreed that a legal form should be provided.

Other comments included that a prescribed form must be user-friendly, available in multiple formats or languages, and in both downloadable and hardcopy formats. It was also suggested that information on how to end a joint tenancy should be included in the PRT agreement, with accompanying easy read guidance.

Concerns about use of a prescribed form

Some ‘Tenant, community group or union’ respondents commented that there is currently no prescribed form for tenants wishing to leave a normal PRT. They went on to suggest that there should just be a clear explanation regarding what is in a pre-notice and how it needs to be sent and received by the other joint tenant(s). Their view was associated with a concern that a prescribed or ‘model’ notice might be inaccessible to tenants, especially when they are in a potentially stressful situation.

There were also concerns, from an ‘Advice organisation and third sector’ respondent, that a common aspect of abusive control is to restrict internet access and/or remove digital devices, and that this could make it difficult for someone to access an online form. More generally, it was suggested that a prescribed form could place hurdles in the way of those who are not comfortable with, or able to access, online materials.

Alternative approaches suggested, including by ‘Individual’ respondents, were that an email or written notice of some kind would be sufficient and help avoid the potential administrative burden and bureaucracy of a prescribed form.

Question 34: Do you think that the pre-notice should be sent by the tenant initiating the end of the tenancy in a specific way to the other joint tenants, for example recorded delivery or by sheriff officer?

A total of 347 respondents, or 55% of non-campaign respondents, answered the closed element of Question 34. ‘Campaign’ respondents did not answer this question. Responses by respondent type are set out in Table 22 below.

Table 22: Question 34

Respondent type	Yes	No	Total
Advice organisation and third sector	6	3	9
Developer or investor	10	1	11
Local authority	13	0	13
Private landlord, letting agent or their representative bodies	17	14	31
Professional or representative body	3	0	3
Public body	1	0	1
Social landlord or their representative bodies	1	7	8
Tenant, community group or union	3	3	6
Total organisations	54	28	82
% of organisations	66%	34%	100%
Individuals	124	141	265
% of individuals	47%	53%	100%
All non-campaign respondents	178	169	347
% of all non-campaign respondents	51%	49%	100%
Campaign respondents	0	0	0
% of campaign respondents	0%	0%	0%
All respondents	178	169	347
% of all respondents	51%	49%	100%

Respondents were relatively evenly divided on whether the pre-notice should be sent by the tenant initiating the end of the tenancy in a specific way to the other joint tenants. A small majority of those answering the question – 51% – thought it should, while the remaining 49% thought it should not. Organisations were more likely to think so than individuals (at 66% and 47% of those answering respectively).

All or most ‘Local authority’, ‘Advice organisation and third sector’, ‘Developer or investor’ and ‘Professional or representative body’ respondents favoured the approach. ‘Private landlord, letting agent or their representative bodies’ and ‘Tenant, community group or union’ respondents were relatively evenly divided on the issue, while ‘Social landlord or their representative bodies’ were largely opposed.

Please explain your answer. If yes, what method do you think should be required?

Around 245 respondents explained their answer to Question 34.

‘Private landlord, letting agent or their representative bodies’ and ‘Individual’ respondents referred to the terms of the lease as being the vehicle for setting out the agreed method for how tenants should communicate with each other in the event of a breakdown of a tenancy. An ‘Advice organisation and third sector’ respondent suggested that, when entering into a tenancy, joint tenants should be informed that they should be able to evidence that they have given timely and written pre-notice to joint tenants.

Recorded delivery

A number of respondents, including ‘Local authority’, ‘Advice organisation and third sector’, ‘Professional or representative bodies’, ‘Tenant, community group or union’ and ‘Individual’ respondents, suggested that recorded delivery would be suitable option for delivery of the pre-notice. Reasons given included that:

• it provides evidence that a tenant has sent the notice, and it has been received, should the other tenant(s) claim otherwise
• it is a relatively straightforward process for the tenant who wishes to serve the notice
• the costs of recorded delivery are minimal when compared to using a sheriff officer

Views from the consultation sessions

To avoid disputes, tenant participants thought that the form should be sent via recorded delivery, or email with a read receipt, to the landlord and all joint tenants.

Sheriff officer

Overall, opinions on delivery by sheriff officer were mixed, with some respondents taking the view that they should not be used. There were concerns that the higher cost of sheriff officer services could be a barrier for some tenants, and that they would be unaccustomed to accessing these services.

However, ‘Advice organisation and third sector’ respondents were among those suggesting that using a sheriff officer could be useful where there may be safety issues, including cases involving domestic or economic abuse or where communication between tenants has broken down for other reasons.

Other options

Email: ‘Advice organisation and third sector’ and ‘Tenant, community group or union’ respondents were among those suggesting that the pre-notice could be sent by email, with the read receipts feature used as a record to confirm that the email has been received and opened.

Hand delivery: ‘Professional or representative body’ and ‘Advice organisation and third sector’ respondents were among those suggesting the pre-notice could be hand delivered, and a signed receipt obtained as confirmation. It was noted that where delivery by the tenant could be inappropriate or unsafe, the notice could be delivered via a trusted third party, such as a support worker, legal representative or the local authority.

An online portal or form: A centralised, online system was also suggested, including by ‘Private landlord, letting agent or their representative bodies’ respondents and a ‘Professional or representative body’. The advantages outlined included that it could automatically notify all joint tenants and the landlord once the pre-notice was submitted and offer built-in confirmation of receipt, reducing the administrative burden on the tenant initiating the process. The Safe Deposits Scotland scheme was given as an example.

Finally, a ‘Professional or representative body’ respondent commented that in rural and remote areas, tenants may face additional barriers that complicate the process for ending a tenancy. They reported that issues might include limited access to postal services and unreliable internet connectivity, and that in-person delivery of notices may also be impractical due to geographic isolation or safety concerns, particularly in cases involving domestic abuse. It was suggested that realistic alternatives for serving and evidencing notices in rural and island contexts, such as allowing for third-party delivery or telephone confirmation followed by written notice, are needed.

Requirements for serving the final notice to leave on the landlord

To ensure that other joint tenants are clear when they must leave the property, and when other tenancy liabilities are due to come to an end, an amendment was made by Scottish Ministers to the Bill. The amendment means that the tenant ending the tenancy must provide a copy of the 28-day notice to leave to all other joint tenants and confirm to the landlord that this has been done when serving the notice to leave on the landlord.

The amendment to the Bill also provided the Scottish Ministers with regulation-making powers to enable them to set out other requirements in relation to the way in which the 28-day notice is served on the remaining joint tenants.

Question 35: Do you think the tenant initiating the ending of the tenancy should be required to provide evidence that the pre-notice has been sent alongside the notice to landlord? For example, proof of email, postage, or information that shows it has been served by a sheriff officer.

A total of 412 respondents, or 65% of all non-campaign respondents, answered the closed element of Question 35. ‘Campaign’ respondents did not answer this question. Responses by respondent type are set out in Table 23 below.

Table 23: Question 35

Respondent type	Yes	No	Total
Advice organisation and third sector	5	3	8
Developer or investor	11	0	11
Local authority	13	1	14
Private landlord, letting agent or their representative bodies	26	8	34
Professional or representative body	3	0	3
Public body	1	0	1
Social landlord or their representative bodies	4	3	7
Tenant, community group or union	6	0	6
Total organisations	69	15	84
% of organisations	82%	18%	100%
Individuals	245	83	328
% of individuals	75%	25%	100%
All non-campaign respondents	314	98	412
% of all non-campaign respondents	76%	24%	100%
Campaign respondents	0	0	0
% of campaign respondents	0%	0%	0%
All respondents	314	98	412
% of all respondents	76%	24%	100%

A majority of those answering the question – 76% – thought the tenant initiating the ending of the tenancy should be required to provide evidence that the pre-notice has been sent alongside the notice to landlord. Organisations were more likely to think so than individuals (at 82% and 75% of those answering respectively).

Although the majority of each respondent group thought the tenant should be required to provide evidence, some ‘Private landlord, letting agent or their representative bodies’, ‘Advice organisation and third sector’ and ‘Social landlord or their representative bodies’ respondents did not think so.

Please explain your answer.

Around 290 respondents explained their answer to Question 35.

Some respondents reiterated points made at Question 34 on the potential methods that could be used as evidence that the pre-notice has been sent: recorded delivery, email with read receipt, using a sheriff officer or other third party, hand delivery and digital portal. Additional comments are detailed below.

Support for providing evidence

A ‘Professional or representative body’ and a ‘Public body’ were among those suggesting that requiring the tenant to provide evidence to the landlord that the pre-notice has been served on the other joint tenants would:

• give assurance to the landlord that all joint tenants are properly informed, and that the statutory process has been followed
• reduce the risk of disputes or claims of non-receipt, and make the process less open to legal challenge by the other joint tenant(s)

It was also suggested that providing this evidence would eliminate the need for the landlord to rely on information provided by the other joint tenant(s), which would be particularly relevant in cases where a domestic abuse survivor has sent a pre-notice.

Concerns about providing evidence

A ‘Social Landlord or their representative bodies’ respondent queried whether or not it is the landlord’s responsibility to ensure that the remaining tenants have been informed, observing that it is not clear from the proposals who bears the responsibility for compliance and enforcement.

Another ‘Social landlord or their representative bodies’ respondent commented that it should be set out clearly whether it is the landlord’s sole responsibility to ensure that any other joint tenant(s) are properly informed about the termination and that it would be helpful to understand the potential implications of failing to do so, including any legal, financial or practical consequences for both the landlord and the other tenant(s).

The view of some other respondents, including ‘Private landlord, letting agent or their representative bodies’ and ‘Individuals’ was that the tenant should serve notice to the landlord or agent in writing, and the landlord or agent should then notify the other joint tenants that the tenancy is coming to an end and the reason why. An ‘Advice organisation and third sector’ respondent took the view that, in instances where there are abuse or control issues, there should be a mechanism for a tenant or an agency to inform the landlord, who could then take action to assist the tenant to leave.

Question 36: Do you think that the copy of the 28-day notice to the landlord should be sent by the tenant initiating the ending of the tenancy in a specific way to the other joint tenants, for example, recorded delivery or by sheriff officer?

A total of 384 respondents, or 60% of all non-campaign respondents, answered the closed element of Question 36. ‘Campaign’ respondents did not answer this question. Responses by respondent type are set out in Table 24 below.

Table 24: Question 36

Respondent type	Yes	No	Total
Advice organisation and third sector	5	3	8
Developer or investor	9	0	9
Local authority	14	0	14
Private landlord, letting agent or their representative bodies	20	14	34
Professional or representative body	3	0	3
Public body	1	0	1
Social landlord or their representative bodies	3	6	9
Tenant, community group or union	4	2	6
Total organisations	59	25	84
% of organisations	70%	30%	100%
Individuals	187	113	300
% of individuals	62%	38%	100%
All non-campaign respondents	246	138	384
% of all non-campaign respondents	64%	36%	100%
Campaign respondents	0	0	0
% of campaign respondents	0%	0%	0%
All respondents	246	138	384
% of all respondents	64%	36%	100%

A majority of those answering the question – 64% – thought that the copy of the 28-day notice to the landlord should be sent by the tenant initiating the ending of the tenancy in a specific way to the other joint tenants. Organisations were more likely to think so than individuals (at 70% and 62% of those answering respectively).

However, the majority of ‘Social landlord or their representative bodies’ respondents, and a significant minority of ‘Private landlord, letting agent or their representative bodies’ and ‘Advice organisation and third sector’ respondents did not think the tenant initiating the ending of the tenancy should be required to send the notice to the other joint tenants in a specific way.

Please explain your answer.

Around 270 respondents explained their answer to Question 36.

‘Private landlord, letting agent or their representative bodies’ and ‘Developer or investor’ respondents were among those commenting that the responsibility to ensure that all relevant parties are notified should lie with the initiating tenant and not with the landlord.

Many respondents reiterated their comments on the range of methods referenced at Question 34, with recorded delivery or email preferred above the sheriff officer. ‘Tenant, community group or union’ and ‘Individual’ respondents were among those suggesting that the notice should not be served through a sheriff officer because this would be cumbersome and inaccessible, in particular for vulnerable tenants.

There were specific comments on the need to avoid the process becoming prohibitively costly for tenants, including from ‘Local authority’, ‘Tenant, community group or union’ and ‘Individual’ respondents. Some ‘Local authority’ respondents also observed that the costs and arrangements for the use of sheriff officers is beyond the means of many people.

A ‘Private landlord, letting agent or their representative bodies’ respondent suggested a central government portal, similar to that for Safe Deposits Scotland, could be used. A ‘Social landlord or their representative bodies’ respondent noted that they would not support costly or overly complex requirements beyond what is required of social rented sector tenants.

It was suggested that the process should be dealt with sensitively in instances where there has been domestic abuse or a falling out between tenants and that, in some situations, the tenant initiating the change may need support from an external agency, such as a Citizens Advice Bureau.

Finally, it was suggested that the tenancy agreement should confirm appropriate or required methods of communication at the outset of the tenancy.

Question 37: Do you think the tenant ending the tenancy should be required to give evidence to the landlord that a copy of the 28-day notice has been sent to all other joint tenants? For example, proof of email, postage or by served by sheriff officer.

A total of 391 respondents, or 61% of all non-campaign respondents, answered the closed element of Question 37. ‘Campaign’ respondents did not answer this question. Responses by respondent type are set out in Table 25 below.

Table 25: Question 37

Respondent type	Yes	No	Total
Advice organisation and third sector	4	4	8
Developer or investor	10	0	10
Local authority	13	0	13
Private landlord, letting agent or their representative bodies	26	9	35
Professional or representative body	3	0	3
Public body	1	0	1
Social landlord or their representative bodies	3	5	8
Tenant, community group or union	3	3	6
Total organisations	63	21	84
% of organisations	75%	25%	100%
Individuals	219	88	307
% of individuals	71%	29%	100%
All non-campaign respondents	282	109	391
% of all non-campaign respondents	72%	28%	100%
Campaign respondents	0	0	0
% of campaign respondents	0%	0%	0%
All respondents	282	109	391
% of all respondents	72%	28%	100%

A majority of those answering the question – 72% – thought the tenant ending the tenancy should be required to give evidence to the landlord that a copy of the 28-day notice has been sent to all other joint tenants. Organisations were slightly more likely to think so than individuals (at 75% and 71% of those answering respectively).

However, the majority of ‘Social landlord or their representative bodies’ respondents did not think so, and ‘Advice organisation and third sector’ and ‘Tenant, community group or union’ respondents were evenly divided on the issue.

Please explain your answer. If yes, what method(s) should be required?

Around 260 respondents explained their answer to Question 37.

Respondents often referred to, or reiterated, comments made at Questions 34 and 35 and listed various methods that could be used to provide evidence, with recorded delivery and email preferred above using the sheriff officer. The tenancy agreement was again mentioned as being the place to confirm methods of communication.

Reasons for thinking evidence should be required

‘Local authority’ and ‘Private landlord, letting agent or their representative bodies’ respondents were among those who thought that requiring the tenant to provide evidence to the landlord that the 28-day notice has been served would help support transparency, ensure procedural fairness and reduce the likelihood of disputes based on claims of non-receipt.

‘Professional or representative body’ respondents were among those noting that this would provide landlords with confidence that the statutory process has been properly followed before they act on the notice, while also protecting the rights of all joint tenants. ‘Developer or investor’ and ‘Private landlord, letting agent or their representative bodies’ respondents were among those highlighting the importance of an evidence-based, traceable and auditable process.

Views from the consultation sessions

Tenant participants thought that proof of sending notice to other joint tenants should be provided to the landlord. They suggested this could be via a copy of recorded delivery receipt or email.

Reasons for thinking evidence should not be required

A ‘Professional or representative body’ respondent thought that, to ensure accessibility and maintain flexibility for tenants in different circumstances, the legislation should allow for a range of evidential methods, rather than prescribing a single format. A ‘Social landlord or their representative bodies’ respondent referred to what they saw as costly and overly complex requirements to end a joint tenancy that are beyond what is required of social rented sector tenants.

Other observations included that:

• this requirement must not delay or invalidate the notice period itself, and tenants initiating the end of the tenancy should not face barriers in doing so, particularly in cases involving safety concerns
• requiring more steps may make it even less likely that survivors of domestic abuse will be able to leave the home, for example in a coercive control situation where proof of postage could be discarded or emails deleted
• the proposed requirement would be cumbersome as tenants will have already shown the evidence of the pre-notice
• the proposal could lead to uncertainty for tenants as to whether a notice period has been accepted or not, and make the process much more stressful and complicated

Summary of process

The consultation paper set out that collectively the proposed changes mean that, for a joint tenant to bring a tenancy to an end without the agreement of the other joint tenants, they must have:

i served a pre-notice on the remaining joint tenants between 2 to 3 months before serving the 28-day notice to leave on the landlord;

ii given a copy of the 28-day notice to leave to every other joint tenant;

iii ensured that the 28-day notice to leave served on the landlord is accompanied by a statement that a pre-notice and a copy of the 28-day notice has been given to every other joint tenant; and

iv met any other requirements as prescribed through regulations by Scottish Ministers.

The consultation paper suggested that each of these steps help to ensure a fair and balanced process for all parties to the tenancy agreement.

Question 38: We will be developing guidance to accompany these measures that would support both landlords and tenants to understand and make use of the new process. We want to provide information and support in certain circumstances such as domestic abuse where further guidance would be helpful, for example where a non-contact order is in place.

What particular information or advice should the guidance cover?

Around 240 respondents answered Question 38.

Preparation of guidance

‘Local authority’ and ‘Advice organisation and third sector’ respondents were among those suggesting that the guidance should be prepared in consultation with tenants, landlords and other interested parties, including stakeholder groups and third sector organisations. A ‘Public body’ observed that the guidance should be co-designed with people who have lived experience or organisations that are able to represent their interests.

Other suggestions, including from an ‘Advice organisation and third sector’ respondent, included that the guidance should be trauma-informed so that tenants, particularly those experiencing domestic abuse, coercive control or similar risks, can confidently and safely initiate the end of tenancy process without fear of re-traumatisation, legal vulnerability or delay.

‘Advice organisation and third sector’ respondents also highlighted that the language used should be accessible, with the content reflecting best practice in supporting vulnerable individuals, including informing tenants of their human rights and relevant protections under housing legislation and the Equality Act 2010.

Other suggestions included:

• the use of flow charts to explain the process
• having separate sections for the tenant wishing to end the tenancy early, the other joint tenant(s) who receive the notice and the landlord of the property, with each section detailing their legal rights and responsibilities, the timescales of the process and where they can seek independent advice
• providing template forms, model letters and checklists
• including case studies and examples of potential scenarios at different stages of the process

There was also a call for the guidance to be supported by training and resources for landlords.

Content suggestions

‘Developer or investor’ and ‘Private landlord, letting agent or their representative bodies’ respondents were among those suggesting that the guidance should:

• define who qualifies as a joint tenant
• set out the responsibilities of the initiating tenant including timelines, who must be notified and what forms (if any) must be used
• clarify the legal standing of tenants who receive a pre-notice and their rights/options
• include a breakdown of each step (pre-notice, 28-day notice, service requirements)
• provide a copy of, or link to, any prescribed pre-notice form, with an explanation of the acceptable methods of serving the notice and the legal consequences for non-compliance
• set out tenants’ rights under other legislation, for example the Matrimonial Homes (Family Protection) (Scotland) Act 1981

It was also suggested that the process for transferring or assigning the tenancy should be covered. A ‘Private landlord, letting agent or their representative bodies’ respondent suggested that a template assignation contract would help landlords to consider this option, albeit that landlords should first check with any mortgage/insurance provider that tenancy assignations are allowed before proceeding.

It was also suggested that guidance for landlords should be provided on:

• the legal position if the joint tenancy is ended and some occupants remain in the property after the end date, including the implications of accepting money from the occupants after that date and how to lawfully remove the occupants if necessary
• deposit payment and return, and the inventory checking process

Covering what tenants and landlords can do if there is a dispute about ending the tenancy, including routes for appeal or complaint, was also suggested. ‘Developer or investor’ and ‘Private landlord, letting agent or their representative bodies’ respondents were among those calling for the guidance to reinforce that landlords are facilitators, not arbitrators, and that any dispute should be referred to the FTT for resolution. As at earlier questions, there were also suggestions relating to signposting to advice and support services.

Particular circumstances or groups

‘Local authority’ and ‘Advice organisation and third sector’ respondents were among those highlighting the importance of tailored advice and support for tenants experiencing domestic or economic abuse, including:

• setting out the legal mechanisms available for survivors to stay in the property and have the perpetrator removed
• providing examples of what tenants can do if a non-contact order is in place, such as how to safely serve a notice or communicate with other joint tenants or the landlord when there is a non-contact or protection order
• providing support for survivors who wishing to exit a tenancy safely and legally, including delivery of the notice by sheriff officer, or with the involvement of a proxy
• including clear pathways for emergency re-housing

A ‘Professional or representative body’ respondent advised that the guidance should highlight areas where the new process could potentially be used as a mechanism for coercive control. The example given was of the service of a pre-notice by someone who is a joint tenant but is no longer residing at the property where a joint tenant who is a survivor of domestic abuse still resides at the tenancy, and their abuser seeks to terminate the tenancy to force them out. The respondent raising this issue also called for the guidance to highlight that the process may also be used in situations involving exploitation, human trafficking and/or criminality, leaving vulnerable people at risk of homelessness. They were looking for advice for landlords on what to do in these instances, including details of appropriate signposting organisations and professional services.

An ‘Advice organisation and third sector’ respondent observed that relevant information should be provided about LGBTQ+ identities alongside information about support for survivors of domestic abuse. They went on to suggest that the guidance should also remind landlords and other parties not to assume the sexual orientation or gender of tenants, and therefore not to assume the relationship between them.

Mental health or capacity issues were also highlighted as instances where additional protections may be required, for example where a joint tenant lacks legal capacity.