Housing (Scotland) Bill: consultation

Chapter 3: ending joint tenancies in the private rented sector

We are taking steps through the Housing (Scotland) Bill to create a new route for the ending of a joint tenancy that does not require mutual agreement. In this part of the consultation, we are seeking your views on the use of the regulation-making powers set out in the Bill that will support the operation of this new process.

Currently under a Private Residential Tenancy one joint tenant cannot terminate a joint tenancy on behalf of all the joint tenants. This ensures that no tenant can inadvertently be made homeless. To end a Private Residential Tenancy, all joint tenants must agree and sign a Notice to Leave, giving the landlord at least 28 days' notice in writing (unless a shorter notice period has been agreed).

Unfortunately, this means that a person can be ‘trapped’ in a tenancy by other joint tenants, regardless of the circumstances, if agreement cannot be reached. Even if a joint tenant moves out of the let property, they are still responsible, along with other joint tenants, for rent and other obligations if the tenancy has not been ended through mutual agreement. This can be difficult for any joint tenant needing to leave a tenancy but can be particularly problematic for those experiencing domestic abuse.

It is in the best interests of all tenants to reach a mutual agreement to end a tenancy where at all possible. However, we know that reaching mutual agreement is not always possible and provisions in the Bill introduce an additional way to end the tenancy in these circumstances. This ensures that no joint tenant can be ‘trapped’ in a tenancy indefinitely against their will.

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 other joint tenant(s) and the landlord at least 2 months’ notice (but no more than 3 months’ notice). Under the Bill this is known as ‘a pre-notice’. This notice period would give the other joint tenants and the landlord formal notice of the intention to end the tenancy. This minimum 2 month period gives time for all tenants to consider their own circumstances and, where possible, discuss their options including reaching a mutual agreement, liaising with the landlord on assigning the tenancy to another person or remaining in the property on a new tenancy. 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.

It will not always be possible for the other joint tenant(s) to remain in the property, for example where this change of circumstances means the property is no longer affordable. The minimum 2 month pre-notice, plus the 28 day notice, will give tenants who do need to find alternative accommodation a minimum of 3 months (should all notices be served timeously) to find alternative accommodation. This is equivalent to the same notice period a landlord must give a tenant if they are ending the tenancy where the tenant has lived there for more than 6 months. This provides a balanced approach between the needs of all the joint tenants and landlords. 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.

These regulations would allow for a pre-notice to include specific additional information, be in a prescribed form and given to the other joint tenants in a particular way. We are seeking your views on making use of these regulations. For example regulations could:

• create a statutory form for the pre-notice that must be used – this would ensure consistency of approach and information all joint tenants and landlords receive where this process is used
• ensure all joint tenants are provided with information about their rights and the stages of ending a joint tenancy without mutual agreement – this would support the effective operation of the new measures
• require that the notice is given in a particular way for example, recorded delivery or by sheriff officer – this would provide evidence that the pre-notice had been served. There would be a cost involved where recorded delivery or a sheriff officer was used

Consultation questions

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)?

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?

Yes/No

Please explain your answer.

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?

Yes/No

Please explain your answer.

If yes, what method do you think should be required?

Requirements for serving the final notice to leave on the landlord

After giving a minimum of 2 months’ pre-notice, the joint tenant(s) who wishes to end the tenancy would be able to serve the notice to leave on the landlord to end the tenancy. But the pre-notice must be given no earlier than 3 months before the final notice to leave is given. If the final notice is not given within 3 months of the final notice and the tenant still wanted to end the tenancy, they would need to start the process again from the beginning.

Given the tenant seeking to end the tenancy can serve the notice to leave at any time between 2 to 3 months before giving the final notice, there is the potential for other joint tenants to be unaware of the exact date the tenancy is due to come to an end. It is thought there is a higher risk of this occurring where tenant relationships and communication have broken down, which is likely to be the reason for using this route to end a joint tenancy. This could cause confusion and result in the other joint tenants being unclear when they must leave the property and other tenancy liabilities are due to come to an end. To address this issue, the Scottish Ministers are proposing an amendment to the Bill at Stage 2 which would mean 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 would also provide 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. We are also seeking views on what further requirements would support the effective operation of this aspect of the provisions. For example, should we specify how the copy of the notice is sent i.e. recorded delivery, by sheriff officer and should the notice to leave be accompanied by evidence that a copy of the notice has been sent.

Consultation questions

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.

Yes/No

Please explain your answer.

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?

Yes/No

Please explain your answer.

If yes, what method(s) should be required?

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.

Yes/No

Please explain your answer.

If yes, what method(s) should be required?

Summary of process

Altogether these 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.

Each of these steps help to ensure a fair and balanced process for all parties to the tenancy agreement. These safeguard the right of a tenant to exit a tenancy where they need to do so; ensure that other joint tenants have sufficient time to negotiate an alternative solution with the exiting tenant(s) and landlord or find alternative accommodation; and provide a clear framework for the landlord, or their agent, to manage the tenancy in these circumstances.

Consultation questions

38. We will be developing guidance to accompany these measures that would support both landlords and tenants 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?