Publication - Consultation paper

A New Deal for Tenants - draft strategy: consultation

We are consulting on the draft A New Deal for Tenants - rented sector strategy, which seeks to improve accessibility, affordability choices and standards across the whole rented sector in Scotland.  

A New Deal for Tenants - draft strategy: consultation
Chapter Three: A New Deal For Tenants

Chapter Three: A New Deal For Tenants

Principles

Whether renting in the private or social sector, all tenants deserve good quality accommodation and a high standard of service from their landlord, which they pay for through their rent. In return tenants should meet the conditions of their tenancy and landlords should be able to take action where serious breaches of tenancy occur.

Establishing high service standards will benefit both tenants and landlords. It strengthens and improves the reputation of the sector overall and in the private rented sector, will encourage good, high quality landlords into the sector whilst removing landlords who treat tenants badly. This is the shift we need to see to ensure the needs of tenants are met.

In the social sector we have a good basis to build on with existing strong tenants’ rights, which help to ensure tenants and registered tenant organisations get involved in decision making and that there are opportunities for tenants to challenge rent increases and be involved in rent setting. There is also a clear focus on improving service delivery and standards through the requirement for social landlords to meet the outcomes and standards set out in the Scottish Social Housing Charter. Social landlord performance against the charter is monitored and reported on by the Scottish Housing Regulator on an annual basis and tenants can easily compare their landlord’s performance with others. Social housing tenants have clear routes for making complaints, through their landlord’s formal complaints procedure, the Scottish Public Sector Ombudsman and, for serious and consistent cases, by reporting a significant performance failure to the Scottish Housing Regulator.

Social sector tenants also have strong security of tenure rights through the Scottish Secure tenancy (introduced by the Housing (Scotland) Act 2001 – ‘the 2001 Act’) where a tenancy can only be ended in very limited circumstances such as by mutual agreement, by the tenant giving notice or by court order.

Although there are still areas where improvements could be achieved, particularly in supporting engagement across a more diverse range of people living in social homes and those who would like to live there, tenants in the social sector have more opportunities for influence over decision making, service standards, rent levels and value for money than tenants in the private sector in general. For private sector tenants, while many tenants can enjoy good relationships with landlords, it is often a matter of luck and the balance of power to determine quality of accommodation, rent levels and maintenance lies principally with landlords, especially in areas with limited availability of rental choices. We want to do more to ensure that tenants can get the service and quality of accommodation that they pay for. In turn this will help to increase tenure stability for both tenants and landlords. Turnover of tenancies is expensive for landlords, the more comfortable and at home tenants feel the better it is for landlords too.

We value the contribution that good private landlords make to providing good quality homes across Scotland and we are committed to working with both them and tenants in developing effective solutions. So the range of actions we are seeking to implement will benefit both tenants and landlords by encouraging good and supportive landlords, improving the overall professionalism of the sector and better challenging those who do not act fairly and legally towards their tenants.

We have already taken important steps to improve security, stability and predictability for private tenants, balanced with safeguards for landlords, lenders and investors through the Private Housing (Tenancies) (Scotland) Act 2016 (‘the 2016 Act’) - the most significant change in private renting in Scotland for almost 30 years. We must now build on that solid foundation and through the Shared Policy Programme[20] agreed between the Scottish Government and the Scottish Green Party in August 2021, we have committed to delivering on a New Deal for Tenants that will raise standards across the rented sector, ensuring that tenants can feel at home in their properties and be protected from unfair evictions. This chapter outlines some of the immediate reforms we think will help to deliver this.

1. Ensuring tenants’ voices are heard with an equalities led approach

We know the rented sector provides a home for a diverse group of people and that understanding the needs and different experiences of tenants is crucial in helping to successfully deliver our vision for Housing to 2040.

That is why Housing to 2040 makes clear the Scottish Government’s intention to ‘put tenant participation at the heart of developing our new Rented Sector Strategy’ and for the private rented sector specifically commits to ‘establish a Tenant Participation Panel and consider and consult on what additional tools and materials are needed to support both tenants and landlords more effectively, including an improved understanding of rights and responsibilities across the sector’.

Chapter 2 sets out some of the evidence available about how people with protected characteristics may experience housing, how those needs may differ and what challenges people may face in accessing suitable housing. As we work towards ensuring people can realise the right to an adequate home (chapter 4) and build a housing system that provides people with real options for living in quality, affordable rented accommodation, we must consider how the sector can meet the needs of everyone.

Consultation Question: What particular barriers do people with protected characteristics face in their experience of the rented sector?

These variations demonstrate the importance of ensuring our approach to tenant participation includes people from a range of different backgrounds and includes people who share protected characteristics. In seeking tenant views and an equality led approach we will work with people to explore their experiences of renting in Scotland and ask their views on how the rented sector can support equality in housing outcomes and experiences.

In the Social Rented sector, through powers introduced in the Housing (Scotland) Act 2001, tenants can set up their own Registered Tenant Organisation (RTO). This is an independent organisation set up primarily to represent tenants’ housing and related interests.

RTOs give tenant groups a recognised role in the tenant participation process and landlords must consult with registered groups on housing related issues such as, rent setting, changes to management policies, standards of service and stock transfers. This means that RTO’s are able to influence the way tenants' homes are managed and work to improve standards and services.

While tenant participation and tenant scrutiny in the social rented sector is well established and developed, tenant participation in the private rented sector is less well developed. In the preparation of this draft strategy we met with Tenant Information Service (TIS), Tenant Participation Advisory Service (TPAS) and tenants’ union Living Rent, along with bodies representing landlords and letting agents to hear about existing work to engage tenants.

We believe a tenant participation panel will add to that work by providing a forum in which a wide range of private rented sector tenants, representative of the diverse range of people living within the sector, can share their experience and views and be supported to actively influence national housing policy and legislation in Scotland, contributing to achieving the Scottish Government’s vision for Housing to 2040.

Action: We will ensure private rented sector tenant participation in the development of the Rented Sector Strategy and establish a Private Rented Sector Tenant Participation panel to provide an effective and long term forum for tenants’ involvement in the development and implementation of national policy. We will ensure the panel membership represents diversity within the sector.

For the social rented sector, we will further develop the Regional Networks to represent diversity within the sector by including people with protected characteristics, younger people and people with a wide range of backgrounds (such as those who have experienced homelessness).

1.1. Ensure that we understand tenants’ experiences and priorities for change to inform effective policy interventions.

In the social sector we are currently reviewing the Scottish Social Housing Charter. The Charter sets the standards and outcomes that social landlords should be achieving for their tenants and other customers. The feedback to our formal consultation was published recently[21].

It recognised that the introduction of the Charter in 2012 has increased tenant engagement by the development of tenant participation scrutiny activities, increased opportunities for tenants to become involved across housing services, more opportunities for tenants to provide their views and higher levels of communication from landlords. A revised Charter will be in place by April 2022 which will build on this.

In the private rented sector we have already taken steps to meet these commitments. The first phase of this work is focussing on hearing from private rented tenants in developing this draft Rented Sector Strategy consultation document. As part of this, we are working in partnership with the Joseph Rowntree Foundation on a tenant insights project exploring low-income tenants’ priorities for change as well as bringing together tenants, housing specialists, landlords and policy makers to agree shared, specific and deliverable recommendations.

The project involving researchers from Edge Hill University and the UK Collaborative Centre for Housing Evidence involves two phases. The first phase of the project comprised a desk-based review collating existing research, initial focus-groups and interviews with renters and a bespoke survey of over 1000 PRS tenants - asking them about their experiences within the sector and their priorities for change. It also held an initial focus group with the Expert Stakeholder Group members to understand some of their priorities for improvements to the PRS, as housing experts. From the survey and qualitative work, some interim findings were developed (November 2021). In 2022, the project will conduct further focus groups and one-to-one interviews and then move to bring together tenants, landlords, housing experts and policy makers to consider, co-design and co-develop some shared recommendations for positive change.

Emerging findings from Phase 1 show a nuanced picture of the experiences of private renters in Scotland. Some key emergent themes from this project, including a survey of over a 1,000 private tenants appear to be around:

  • finding a tenancy - a lack of supply of affordable housing;
  • affordability – some low-income households are having to prioritise rents at the expense of other, basic necessities; and
  • support with disputes - low-income households are less likely to challenge unprofessional practice and to raise disputes with their landlords.

While the research to date has highlighted there are many renters who have had a positive experience(s), there are renters who have not and further analysis is needed to examine the experiences of particular groups. Key issues and priorities highlighted in the focus groups were around:

  • affordability;
  • professionalism of the sector;
  • repairs and property conditions; and
  • empowering renters to assert their rights safely.

We have also enlisted the support of the Tenant Information Service and Tenant Participation Advisory Service who have delivered a series of focus groups to explore the needs and views of a number of other Private Rented Sector tenants including students who rent privately; individuals who rent mid-market, and individuals with agricultural tenancies and tied houses.

5 focus groups were held during October and November 2021 and involved 40 private tenants. There were challenges recruiting individuals in the agricultural sector and for rural workers in tied accommodation. However, discussions were followed up by direct interviews with stakeholder organisations whose membership is drawn from rural tenants, including the Scottish Tenant Farmers Association, the National Farmers Union Scotland, Scottish Land and Estates, the Scottish Gamekeepers Association and the Gamekeepers Welfare Trust.

The following table provides a summary of the main issues raised across all groups within the different tenures:

Affordability

Students who rent privately

Rent controls can potentially address unreasonable rent increases and nurture affordability for students, creating sustainable tenancies. However, it was felt that it may compel a proportion of landlords to sell their properties reducing the overall availability of let-able housing stock.

Mid-market Rent

Whilst still more affordable than full market rents, it was difficult to save a deposit, especially as the whole value of the housing market was going up. Many of these tenants now feel trapped in limbo – unable to afford to either buy or rent in the same area at market prices, now above the income threshold for a move to another mid-market rent property, and a low priority for the very limited social housing available in the area.

Agricultural and tied worker tenancies

There were concerns that increasing regulations on standards will have a knock-on consequence of both increasing costs and rents, and also reducing the availability of housing where farm workers need to live, as landlords would become increasingly less interested in letting the houses if requirements become too burdensome.

Generic focus group

Affordability requires a definition at a national level and local authorities must be empowered with rent controls to hold landlords to account over unacceptable rent levels and increases. By limiting rent increases (rent caps) it will potentially support tenancy sustainment and PRS tenants experiencing poverty.

Security of Tenure

Students who rent privately

Students frequently and reluctantly accept poor quality housing standards and services, and unreasonable rent levels/increases. Any challenge can be met with the threat of eviction.

Mid-market Rent

Generally, the tenants taking part felt secure in their tenancies and were expecting to be able to remain in their homes for as long as they wanted or needed to stay.

Some tenants in homes funded through the National Housing Trust model did not feel secure and were very anxious about their end of tenancy options.

Agricultural and tied worker tenancies

Around 60-70% of agricultural tenancies are secure, with the remainder on limited duration tenancies. These provide security but may limit access for new entrants to farming. Tenancies let separately to a limited duration commercial farm contract and at market rent risk losing the availability of already limited affordable rented housing in rural areas for agricultural workers. Tied tenants live in their accommodation as part of their employment contract, not through a tenancy agreement. They are on low wages and do not pay additional rent. They have no tenancy rights and are at risk of losing accommodation at short notice if employment ends or at retirement.

Generic focus group

Landlord acknowledgement and engagement must be monitored independently when tenants raise concerns with property conditions or standards. The introduction of a minimum set standard for communication and/or engagement would improve the landlord-tenant relationship and establish an element of trust, which in turn would improve property conditions and tenancy sustainment.

Property Management

Students who rent privately

Students are often limited in terms of high-quality housing options and availability. Subsequently they are often driven to compromise and “trade-off” counter-balancing affordability against quality.

Mid-market Rent

Generally, the Mid-market Rent tenants taking part were in relatively new homes and were pleased with standard of their accommodation and had good experience with repairs.

Agricultural and tied worker tenancies

Tenancies let under a limited duration lease are generally let in fair condition and have clear tenant / landlord repair responsibilities. Responsibilities for secure tenancies are much harder to interpret depending on how leases are set out, which may have been set up generations ago and under very different standards and expectations. Not all secure tenants have a written lease. Conditions for tied tenancy accommodation vary enormously. Whilst conditions overall have improved some are still extremely poor. Tenant are generally reluctant to complain for fear of losing their employment.

Generic focus group

The Scottish Government and local authorities must do more to proactively monitor the regulation of individual landlord performance to improve property standards and conditions. This will alleviate the negative stigma that surrounds private renting, making it a more viable option for those who wish to consider through choice, rather than reluctant acceptance.

We will learn from this initial phase to help inform the longer term establishment of a Private Rented Sector Tenant Participation Panel, which will help direct and co-produce national housing policy in the future. As highlighted in the feedback, representation must be diverse and take into consideration equalities to be fully representative of Scotland’s private rented sector.

We will ensure that we fully consider the impact of any proposed policies on all protected characteristics and engage with relevant stakeholders to further improve our understanding and knowledge. Developing and acting on a deeper understanding of the experiences and needs of people in different equalities groups is essential.

Consultation Question: Do you have any suggestions for how we can better meaningfully embed tenant participation within the private rented sector, including for people with protected characteristics, in national and local policy/decision making?

1.2. Consider the role of tenant unions in tenant participation and influencing decision making processes and policies.

In some countries, such as Sweden, tenants’ unions are a well-established way in which tenants make their collective voice heard, working together to influence decision making; raising awareness of tenant rights; and actively representing and supporting members to exercise their rights in disputes with landlords.

As we look to further develop and embed our approaches to tenant participation we are interested in views on the potential future role tenants’ unions could have in supporting tenants to actively participate in decision-making at a national, local and neighbourhood level in Scotland.

In addition, we know that despite measures to strengthen rights and improve access to redress, some tenants still feel unable to challenge poor or illegal practices for fear of the consequences. Tenants’ unions can help to empower tenants and actively support them to exercise their rights and we are keen to consider how this type of grassroots support and advocacy can be encouraged.

Consultation Question: What are your views on the future role tenants’ unions could have in supporting tenants to actively participate in decision-making at a national and local level in Scotland?

1.3. Awareness of rights and support to exercise them.

Awareness of rights is vital across the rented sector but especially in the private rented sector given the sheer number and diversity of landlords. Ensuring that people living in the private rented sector in particular are aware of their existing rights and feel supported in exercising them, if needed, is crucially important.

That is why we will deliver a further national awareness raising campaign early in 2022 and will seek to continue exploring how we can best ensure people are aware of their rights at all times.

We also want to consider how best we can provide advocacy and advice to people who are, or are seeking to, access the First-tier Tribunal for Scotland (Housing and Property Chamber) (“the Tribunal”) in order to exercise those rights.

Consultation Question: How best can we ensure people are aware of their rights and how to exercise them in:

A. The private rented sector?

B. The social rented sector?

2. Enhancing rights within the existing tenancy framework

We have set out how we want to improve how tenants can influence policy and practice at national, regional and neighbourhood level. However, that also needs to be the case for individual tenants dealing with individual landlords or agents.

Tenants have clearly benefited from these reforms, such as the additional security of tenure provided by the Private Residential Tenancy, since it came into force in 2017 and this is supported by feedback and research[22]. However, as it has bedded in, through stakeholder feedback from both tenants and landlords we have identified a number of areas where further improvements could be made.

This was highlighted in a recent baseline research report, Rent Better, funded by the Nationwide Foundation into the impact of these changes which ‘shows that most private sector tenants in Scotland feel secure in their properties, particularly when they have a good relationship with their landlord and feel able to pay their rent.’ However, ‘where deprivation and lack of financial power is an issue, tenants in Scotland still feel a sense of precarity[23]. The research also found that most private tenants don’t have a good understanding of their rights, which affects their ability to challenge poor or illegal practices, preventing the full benefits of these changes being realised.

Below is detailed a number of reforms to the existing Private Residential Tenancy we will aim to make through legislation and a number of areas we are seeking views on:

2.1. Review and consider potential reforms to the current grounds for repossession under the Private Residential Tenancy.

The Private Residential Tenancy has been in place since December 2017 and the Scottish Government made a commitment to review the 18 grounds for eviction after the tenancy had been in operation for five years. The 18 grounds are:

1. Landlord intends to sell

2. Property to be sold by lender

3. Landlord intends to refurbish

4. Landlord intends to live in property

5. Family member intends to live in property

6. Landlord intends to use for non-residential purpose

7. Property required for religious purpose

8. Not an employee

9. No longer in need of supported accommodation

10. Not occupying let property

11. Breach of tenancy agreement

12. Rent arrears

13. Criminal behaviour

14. Anti-social behaviour

15. Association with person who has relevant conviction or engaged in relevant anti-social behaviour

16. Landlord has ceased to be registered

17. HMO licence has been revoked

18. Overcrowding statutory notice

All grounds have currently been made discretionary under the emergency Coronavirus legislation, and will remain so until 31 March 2022. As part of the Covid Recovery Bill consultation, we have sought views on making this change permanent, bringing the position in line with the social rented sector.

To understand better the different grounds used to bring tenancies to an end we have looked at cases brought to the Tribunal. In comparison to the number of tenancies the numbers coming to the Tribunal are relatively small. The vast majority of tenancies coming to an end through landlord action, citing grounds, will not proceed to Tribunal so we cannot be sure that the data below represent the use of grounds as a whole. Nevertheless, it can give us some useful insight.

Data from published decisions by the Tribunal was analysed in two stages using data from two 6 month periods, September 2019 - March 2020 and May 2021 – November 2021. On 18 March 2020, the Tribunal postponed all scheduled hearings in response to the Covid-19 pandemic, setting a universal date of postponement of 28 May 2020. On 22 May 2020, a further postponement was made to the 9 July 2020. The first stage of the analysis was conducted using eviction case data from the 6 months prior to the closure of the Tribunal due to the Covid-19 pandemic.

Information on Private Residential Tenancy eviction cases, gathered from published decisions by Tribunal, from September 2019 to March 2020 shows that multiple eviction grounds are often relied upon in each application. The following analysis discusses eviction case data for Private Residential Tenancy evictions only and therefore does not seek to draw conclusions about eviction case outcomes for other forms of tenancies.

In the September 2019 – March 2020 period, the following grounds were the most commonly used:

  • Around 77.5% of cases where a decision had been made, relied on ground 12 (rent arrears) as the main or additional ground. Of these, 61.8% resulted in a successful eviction on the basis of ground 12.
  • Around 15.5% of cases where a decision had been made relied on ground 11 (breach of tenancy agreement) as the main or additional ground. Of these, 22.7% were successful on the basis of ground 11. Ground 11 was typically an additional ground and cases often succeeded on another ground, if ground 11 was not successful.
  • Around 21.1% of cases where a decision had been made, relied on ground 1 (landlord intends to sell) as the main or additional ground. Of these cases, 50% resulted in a successful eviction on the basis of ground 1.

The above findings represent eviction case outcomes involving a Private Residential Tenancy before the Covid-19 pandemic. The second stage of the analysis of eviction case outcomes using data from May 2021 - November 2021 is currently ongoing. Initial findings from this analysis are presented below alongside the previous analysis from the period September 2019 - March 2020.

The graph below sets out the number of eviction cases alongside the number that were successful in relation to all 18 grounds for both periods.

Chart 2.1 Number of times eviction grounds used

When compared to the September 2019 - March 2020 time period, there are some notable differences in how often grounds were used. Previously, cases most commonly relied on ground 12 “rent arrears”, ground 11 “breach of tenancy agreement” and ground 1 “landlord intends to sell”, with few instances where other grounds were used. The current analysis presents a more varied picture, indicating that cases are relying on a much wider range of grounds than in the previous time period.

Notable differences included:

  • There were 201 cases where a decision had been made in the period May 2021 – November 2021 compared to 142 cases where a decision had been made in the September 2019 – March 2020 period. Although some of this increase may be due to an overall higher number of Private Residential Tenancies being used in the private rented sector across the more recent time period, compared with the number of tenants who are still on other previous forms of tenancies.
  • Cases were less likely to rely on ground 12 “rent arrears” in the more recent time period (51.9% of submitted cases), compared to 77.5% previously. Although cases relying on ground 12 were slightly more likely to be successful in the most recent time period analysed, 69.2% compared to 61.8% previously.
  • A similar number of cases in both periods relied on ground 1 “landlord intends to sell”, with 22.8% of cases relying on this ground compared to 21.1% previously. However, cases relying on ground 1 were more likely to be successful in the May-November 2021 period, 80.9% compared to 50% previously.
  • Cases in the most recent time period were more likely to rely on ground 4 “landlord intends to live in the property”, 13.6% of submitted cases, compared to 3.5% previously.
  • Cases in the most recent time period were also more likely to rely on ground 5, “Family member intends to live in the property”, 8.3% of submitted cases, compared to 0.7% previously.

Although there is insufficient evidence to draw firm conclusions at this stage, there is a possibility that an increased reliance on grounds 4 and 5 could be driven by comparatively shorter notice periods (3 months compared to 6 months for most grounds).

Limited research has been carried out to date on the impact of the Private Residential Tenancy and the operation of the grounds for repossession. However, the ‘Rent Better’ research reported there were ‘significant problems for landlords and a sense of discontent’ around the use of ground 12 “rent arrears” – due to the length of time it takes to achieve eviction for rent arrears and the resultant loss of earnings for landlords. The summary report goes on to recommend further consideration of ground 12.

The second most commonly used ground in Tribunal cases was the ‘Landlord intends to sell’ making up around 20% of cases. As part of our review of repossession grounds we want to look at what more we can do to support tenants where the let property is being sold. We know that some landlords sell the property to another landlord with a sitting tenant rather than ending the tenancy; or offer the tenant the opportunity to buy the property themselves. We are interested in exploring how we can encourage more landlords to consider alternatives to ending the tenancy and avoid tenants being required to move in these circumstances – for example, considering how the repossession grounds could minimise disruption to tenants.

In addition, we are aware from stakeholder feedback that since the introduction of the Private Residential Tenancy there has been some confusion regarding whether a landlord could use the eviction ground 6 “Landlord intends to use for non-residential purpose” to evict a tenant in order to use a property for short term holiday let(s).

This is contrary to the original policy intention and we will therefore consider taking legislative action to make clear that this eviction ground cannot be used to evict a tenant in order to use the property as a short term holiday let.

Assessing what is the correct balance between maintaining tenancies wherever possible and landlords’ rights is crucial to reviewing and considering potential reforms to repossession grounds. To help inform this review, we are seeking feedback on the operation and effectiveness of the current repossession grounds.

Consultation Question: After 4 years of use, how well do you think these grounds are working? Is there anything that you would like to see changed?

Please explain your answer with reference to the relevant ground(s).

Consultation Question: Are there any additional specific grounds for ending a tenancy that you think should be added?

Yes, No, Don’t know - Please explain your answer.

Consultation Question: Do you have any views on our proposal to take forward a clarification in relation to the use of ground 6 – ‘Landlord intends to use for non-residential purpose’?

2.2 Introduce pre-action protocols on a permanent basis in the private rented sector and revise pre-action requirements in the social rented sector to include a new obligation to ensure domestic abuse has been fully considered before commencing legal action to recover possession of a property for rent arrears.

The Scottish Government’s consultation paper “Covid Recovery: A consultation on public services, justice system and other reforms”, sought views to enact the provisions in relation to pre-action requirements and Tribunal discretion – as put in place through the emergency Coronavirus legislation - on a permanent basis.

Pre-action requirements and discretion for the Courts to determine the reasonableness of an eviction case are already permanent features of the social rented sector legislative framework. Making these also permanent in the private rented sector would help us achieve our aims to have tenure neutral outcomes for tenants and will help to ensure that eviction action is always a last resort.

Pre-action requirements ensure that prior to seeking a repossession on the grounds of rent arrears, private landlords must make reasonable efforts to work with tenants to manage arrears. This measure formalises the steps landlords should take when working with tenants to manage arrears, helping to sustain tenancies. In addition, should the landlord make an application to the Tribunal to repossess the property, the Tribunal is required to take account of a landlord’s compliance with the pre-action requirements in deciding whether to grant an eviction order.

Alongside making these pre-action requirements permanent, the consultation sought views on permanently giving the Tribunal discretion in either all repossession cases; or restricting Tribunal discretion to rent arrears cases only.

If a private landlord serves a notice to leave and the tenant chooses not to leave the property, a private landlord must go to the Tribunal for an eviction order. Under normal tenancy legislation, many of the eviction grounds are mandatory, meaning a Tribunal has to grant an eviction order if all the requirements have been met. Emergency legislation currently gives the Tribunal discretion to take all circumstances into account in deciding whether it is reasonable to issue an eviction order or not.

The Covid Recovery consultation has now closed and careful consideration is being given to responses on making both pre-action requirements and discretion for the Tribunal permanent measures in the forthcoming Covid Recovery Bill. However, as the Scottish Ministers have already committed to bring forward further housing legislation in this parliamentary term, this provides an additional opportunity to refine these provisions should they be taken forward, if required. For example, we could consider whether to require a landlord to make a homelessness prevention referral to the local authority as part of the pre-action protocols (with the tenant’s consent) – similar to the current Section 11 notification, but earlier in the process, and therefore proactively notifying a local authority before eviction action commences.

We also want to take forward further work to refine the existing Social Rented Sector pre-action requirements , which have been in place since 2012. This could include refinements to take account of changes made to rent arrears processes by Universal Credit and to ensure the impact of domestic abuse is taken into account in rent arrears cases.

Consultation Question: What further refinements could be made to either the private rented or social rented sector pre-action requirements in order to further protect and support tenants?

Consultation Question: Can you provide any examples/case studies of where the pre-action requirements have worked well in practice?

2.3 Rented sector and gender based violence

Everyone should feel safe in their home. Having safe accommodation is fundamental for women’s safety and wellbeing. However, violence against women (VAW) in all forms can have a significant impact on housing needs and experiences.

Domestic abuse is the most common reason for women to make a homelessness application and we also recognise that other forms of abuse, such as sexual violence and “honour based” violence, may leave victims unsafe in their homes. The recent legislative changes with the Domestic Abuse (Protection) (Scotland) Act 2021, when enacted, will give social landlords the power to initiate eviction proceedings against a perpetrator of domestic abuse, enabling victims to remain in the family home, rather than the perpetrator of domestic abuse, where an appropriate order has been granted by the court. This Rented Sector Strategy will support work to extend this to tenants in the private rented sector as well.

The specific harms of commercial sexual exploitation (CSE) as a form of VAW, and particularly the exchange of sex for rent, are important in the context of the Private Rented Sector; this is an example of how housing can be a pivotal factor in pushing women into CSE and act as a barrier to them exiting.

Sex for rent is not the only harmful way in which housing can be interlinked with commercial sexual exploitation. People involved in sex work, including women subject to CSE, may have difficulty in providing employment information and references which makes them vulnerable to exploitation and not having a legal tenancy agreement. Overall this lack of choice and control and risk of exploitation from landlords can result in discrimination against people involved in sex work and in particular can leave women vulnerable to starting to exchange or sell sex or not being able to exit.

The terms “immoral purposes” and “brothel keeping” in the model Scottish Secure Tenancy Agreement and Private Residential Tenancy: Model Agreement have also been used to control women or, in some cases, evict people solely because they are involved in sex work and we will support work to review these terms to provide clarity and consistent government messaging for both landlords and tenants.

Women’s right to housing could be better realised by the provision of mainstream support. The vulnerabilities faced by some women can be extremely complex and varied and looking at housing issues in isolation is unlikely to overcome them. While noting the range of views on these issues, we will support work to review legislation to tackle commercial sexual exploitation and to consider as part of a wider package of support, housing measures to that support women to exit.

Consultation Question: What measures could be implemented to support people involved in sex work, including women subject to commercial sexual exploitation in the rented sector?

2.4. Ensure that:

  • a joint tenant can end their interest in a private rented sector tenancy; and
  • joint tenants who experience domestic abuse in a private rented sector tenancy, can, where appropriate, remain in the family home as a sole tenant.

We want to improve housing outcomes for women and children experiencing domestic abuse in private housing. As detailed in the previous section, the Domestic Abuse (Protection) (Scotland) Act 2021 will give social landlords extra powers, and the Domestic Abuse Homelessness Prevention Pathway Working Group set out recommendations for social housing in 2019, which are now being taken forward by the Scottish Government and partners. Next year this group will take forward a program of work to consider the needs of women and children in private housing and make recommendations for change.

The recent legislative changes with the Domestic Abuse (Protection) (Scotland) Act 2021, when enacted, will give social landlords the power to initiate eviction proceedings against a perpetrator of domestic abuse, enabling victims to remain in the family home, rather than the perpetrator of domestic abuse, where an appropriate order has been granted by the court.

From previous stakeholder engagement in this area we are aware of two specific tenancy issues that we wish to address in advance of this work and have committed to take action on in Housing to 2040 - joint tenants experiencing domestic abuse can end a joint tenancy in the private rented sector and, where appropriate, can remain in the family home as a sole tenant.

A joint tenant can end their interest in a private rented sector tenancy

Under the Private Residential Tenancy, introduced under the 2016 Act, where there is more than one person named on a tenancy agreement as the tenant, the tenancy will be a joint tenancy. This means that each person is responsible on their own individually - as well as equally along with all of the others - for all of the payments and other things the tenant is required to do under the tenancy. For example, if any of the tenants in a joint tenancy fell into rent arrears, the landlord could ask one of the other named tenants to pay the money owed. That person must pay the landlord the full sum that is owed and then try to get the other people who are also joint tenants to repay them their share.

However, 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 the Notice to Leave, giving the landlord at least 28 days' notice in writing (unless a shorter notice period has been agreed). If a landlord receives Notice to Leave from only one joint tenant, that notice will not have the effect of terminating the tenancy and the joint Private Residential Tenancy will continue, with all parties remaining liable.

If the other joint tenants don't want to leave, they can try to negotiate a new agreement with the landlord’s permission. For example, they can seek to arrange for:

  • another tenant to move in to replace the person who wants to leave and the tenancy is either assigned to the new tenant or a new tenancy is created, or
  • any other joint tenants can decide to stay on and pay the extra rent themselves through a revised or new tenancy.

However, if the other joint tenant(s) decide to stay on and not to release the tenant that wishes to leave, then all tenants, including the tenant that has left will continue to be jointly and severally liable regardless of whether they are living in the property.

We are aware of situations where, for example, tenants are effectively ‘trapped’ in a tenancy whilst experiencing a complete relationship breakdown with other joint tenants but are unable to end their interest in the tenancy as other joint tenants are refusing to bring the tenancy to an end. The original policy intention was to prevent one, or more, of the joint tenants being made unintentionally homeless without their knowledge. However, in practice this may be causing unintentional harm.

These issues are particularly acute for those who experience domestic abuse, but not limited to people in these circumstances. For example, due to the ongoing joint and several liability for rent and any other financial obligations, including existing and future rent arrears, preventing their partner from ending their interest in the tenancy, even if they have moved out, can be one form of abusive and coercive behaviour. This can enable the abusive partner to continue to exert control and perpetrate abuse when they are no longer living together.

In the social rented sector, provisions under the Housing (Scotland) Act 2001, as amended, allow a joint tenant to terminate their interest in a joint tenancy. This means that if a joint tenant wishes to leave in the social rented sector, they must give the other joint tenant(s) and their landlord four weeks' notice in writing. After this notice period, the departing tenant no longer has any liability for the property, although will remain jointly liable for any rent and other tenancy obligations before their interest in the tenancy ended.

We believe there is a need to make legislative changes to the operation of the Private Residential Tenancy to ensure that a joint tenant can end their interest in the tenancy without the agreement of the other joint tenant(s). We think this change will be of particular benefit to those experiencing domestic abuse.

Consultation Question: Do you agree with our proposal to amend the 2016 Act to ensure that all joint tenants can terminate their interest in a private residential tenancy without the agreement of other joint tenant(s)?

Yes, No, Don’t know - Please explain your answer.

Consultation Question: In the social rented sector, the notice period required for a joint tenant to end their interest is four weeks.

A. Should a similar 4 weeks’ notice period apply for a joint tenant in the private rented sector to give to their landlord and other joint tenant(s) to end their interest in the tenancy?

Yes, No, Don’t know - Please explain your answer.

B. Should there be longer notice periods where there are more than two joint tenants to reflect the greater prevalence of multiple joint tenancies in the private rented sector, for example in student households?

Yes, No, Don’t know - Please explain your answer

Consultation Question: Should this proposal be taken forward, are there any additional safeguards that should be put in place for remaining joint tenants in the private rented sector?

Yes, No, Don’t know - Please explain your answer.

Joint tenants who experience domestic abuse in the private rented sector, where appropriate, can remain in the family home as a sole tenant

We want to ensure that private tenants who experience domestic abuse can, where appropriate, remain in the family home. In the social rented sector much work has already been undertaken to support and protect joint tenants being abused and enhancing of their rights in relation the ending and transferring of tenancies.

Once implemented (expected by the end of 2022) the social housing tenancy provisions in the Domestic Abuse (Protection) (Scotland) Act 2021 will give social landlords greater control to transfer tenancies to a victim/survivor, upholding their rights to remain in the family home and to take a more proactive role in supporting and protecting victims/survivors of domestic abuse.

When commenced, the provisions will allow social landlords to apply to the court to end a sole tenancy of a perpetrator of domestic abuse or end a perpetrators interest in a joint tenancy in certain circumstances enabling the victim to remain in the family home. The new powers allow landlords to initiate action to transfer the tenancy and reinforces social housing landlords’ zero tolerance of domestic abuse.

There are a number of conditions that must be met to allow these grounds to be used, including that the property is the victim’s only or principle home, that they wish to remain living there and that the parties have been in a co-habiting relationship for at least 6 of the 12 months preceding any action being taken by the landlord.

We want to ensure that private tenants who experience domestic abuse are offered the same protection and options to remain/return to the family home as in the social rented sector. We are therefore interested in views on introducing a similar ground to enable a private landlord to apply to the First-tier Tribunal for Scotland (Housing and Property Chamber) to transfer a tenancy to enable a survivor of domestic abuse to remain in the family home as a sole tenant.

We recognise that many small private landlords may be less equipped to support their tenants where domestic abuse occurs and would also be interested in how we can build private landlords’ capacity to support tenants where domestic abuse occurs.

Consultation Question: Should we introduce a similar ground to that in the social sector, to enable private landlords to initiate eviction proceedings to end a perpetrators interest in a joint tenancy and transfer the tenancy to a tenant who was subject to domestic abuse allowing the victim/survivor to remain in the family home where they wish to do so?

Yes, No, Don’t know - Please explain your answer.

Consultation Question: Unlike the social rented sector, private rented sector housing cases are heard by the Tribunal. What are your views on the Tribunal’s role being expanded to consider transfer of tenancy in relation to cases of domestic abuse?

Consultation Question: Should we streamline the eviction process (remove the discretion of the Tribunal), where there has been a criminal conviction relating to abuse of another person living with them in the let property (joint tenant or co-habitee) which is punishable by imprisonment in the previous 12 months?

Yes, No, Don’t know - Please explain your answer.

Consultation Question: How can we help improve the immediate and longer term housing outcomes of domestic abuse victims living in the private rented sector?

2.5 Amendment to the Private Residential Tenancy rent adjudication process

Chapter Four of this draft Strategy seeks views on action that can be taken in relation to affordability and rent regulation. However, we believe more immediate reform could be made to the current rent adjudication process[24] within the private rented sector to support this aim.

As part of the adjudication process, the rent officer determining the case will set the rent level based on a range of information about the property and has the ability to increase the rent if they decide it should be higher, as well as decreasing it if they think it's too high.

To date, there has been only a small number of rent adjudication applications to Rent Service Scotland with only 89 rent adjudication applications between 1 December 2017 and 30 November 2021. Many suggest this is because tenants are deterred from challenging a rent increase because there is a risk that the Rent Officer (or the Tribunal, on appeal) could increase the rent above that being requested by a landlord to market value.

We now wish to remove this risk to ensure a Rent Officer or Tribunal can only agree to the rent increase proposed by the landlord or agree a lower increase upon receiving an application from a tenant.

Action: We will take legislative action to ensure that a Rent Officer or Tribunal will only be able to agree the proposed rent increase, or lower the rent increase, as part of the existing Rent Adjudication process.

2.6 Tenancy Deposit Schemes (TDS) – use unclaimed deposits to improve and benefit the private rented sector

Where a private landlord asks for a tenant to pay a tenancy deposit, the deposit must be lodged with one of three independent schemes. These three approved tenancy deposit schemes have been operating in Scotland since 2012. Monitoring of the schemes has highlighted the previously unforeseen issue of unclaimed deposits. An unclaimed deposit occurs where a landlord or letting agent notify one of the three approved tenancy deposit schemes that a tenancy has ended and the amount of deposit that they think should be returned to the tenant. This should result in the tenant being repaid the money. However, it has proved difficult in practice for the schemes to contact the tenant to return the deposit. There are currently 13,554 unclaimed deposits amounting to approximately £3.5 million as at October 2021.

A review of tenancy deposit schemes[25] was carried out in 2018 and explored this issue further. It found that the majority of unclaimed deposits ‘belong to students, in particular, overseas students who regularly return home without claiming their money back from the schemes. In addition, some of the larger unclaimed deposits relate to tenancies taken out by companies on behalf of their employees.’

In response to this issue, each of the schemes takes proactive steps to reunite tenants with their deposit, for example emailing, sending letters, calling, texting and awareness raising campaigns to ensure tenants are aware of what they need to do to claim their deposit back. Unfortunately, returning deposits becomes more difficult where contact details are out of date, for example when a University e-mail address has been used. Despite this work, a large number of deposits remain unclaimed.

As part of the review, the schemes were asked for their views on unclaimed deposits. They indicated at that time that they ‘agreed in principle with the Scottish Government’s proposal to explore the reinvestment of unclaimed deposits after a five-year expiry period with no current risk to business viability.’

The review also asked differing questions from landlord and tenants on unclaimed deposits. Tenants were asked about their experience of getting their deposit back and if they, or anyone they knew, had ended a tenancy in the last 5 years without reclaiming the deposit. 85% had not experienced this and did not know someone who had.

Landlords were asked specifically for their views on reinvesting unclaimed deposits in the private rented sector in Scotland after 5 years. 55% of landlords did not object to money being invested in this way and 12% proposed it should be invested to the benefit of others in a different way, for example homelessness, 18% objected but did not give an alternative suggestion and 14% thought the money should go to the landlord.

Unclaimed deposits continue to be protected by the schemes and there is no statutory limit for this. We now want to address this issue and propose legislating to enable the reinvestment of these deposits. Given these deposits should be returned to private tenants, we think it is only right that any reinvestment is to the benefit of tenants living in the private rented sector – for example, to fund the provision of additional tenant advice or advocacy services, or to support the development of tenants unions or other forms of representation in Scotland.

To ensure tenants have sufficient time to claim back the deposit we propose this action would only be taken after a period of 5 years has elapsed; and where all other reasonable efforts to reunite the tenant with their deposit has been exhausted.

Consultation Question: If unclaimed deposits were to be reinvested, do you agree that the period after which the funds would be available for reinvestment should be:

i. after all avenues to reunite deposits with their tenants have been exhausted, and

ii. after a period of 5 years?

Yes, No, Don’t know - Please explain your answer.

3. Greater flexibility to personalise a rented home

Private rented tenants, especially those living in rented accommodation for a significant period of time, would like more opportunity to personalise it so it feels more like their home in the way that both owner occupiers and social rented tenants are already able to.

People would also like the option of keeping pet, and for those who already have a pet, it can often be difficult to find suitable private rented accommodation where pets are allowed.

Of course to achieve this there must be a balance between the right of tenants to treat the property as their home and any costs associated with ensuring the property is returned to an equivalent standard to when first let at the end of the tenancy.

Current Position

In the table below is a summary of where responsibility and costs currently lie within the different tenures:

Pets

PRS – Private Residential Tenancy

Pets are generally allowed only by explicit written agreement of the landlord and landlords may impose conditions where it is granted. If there is damage cause by pets, it is likely to be taken out of the deposit. Risk of increased costs caused by damage increases with a furnished property. There may also be limitations in the deeds or rules associated with the property.

Social Sector – Model Scottish Secure Tenancy Agreement

Pets are also allowed only by agreement of the landlord but permission is usually granted unless there are reasonable reasons for not doing so. As properties in the social sector are generally unfurnished, the costs of any damage to furniture or decoration is borne by the tenant. Landlords may designate particular types of property as being unsuitable for a particular type of pet and this will be reflected in the tenancy agreement at the time a tenancy is offered.

Owner occupied

Owners generally have freedom to keep pets if they choose and all costs/damages are borne by them. However, restrictions may exist in the property deeds (for example in a flat). All pet owners should consider the suitability of the accommodation for different animals and be mindful of not causing a nuisance to neighbours.

Internal Decoration

PRS – Private Residential Tenancy

Good decorative order should be maintained and paid for by the landlord. The tenant can decorate only with the Landlord’s written permission and landlords can claim from the tenant’s deposit where there has been damage to the walls (for example putting up pictures). Properties come both furnished and unfurnished.

Social Sector – Model Scottish Secure Tenancy Agreement

Landlords will have a minimum empty house standard in place, generally agreed with their tenants, which includes the standard of decoration at point of allocation. Tenants are responsible for decoration and furnishings (some landlords provide decoration grants as part of their empty house standard)

Owner occupied

Responsibility and cost of the owner

Adaptations

PRS – Private Residential Tenancy

Cannot be unreasonably refused

Social Sector – Model Scottish Secure Tenancy Agreement

Cannot be unreasonably refused

Owner occupied

Owner responsibility

Considerations

Any policy which creates greater flexibility in respect of a tenant personalising a property will most likely affect the Convention rights of landlords and tenants[26]. Accordingly, any such policy will need to demonstrate an appropriate balance between the rights of landlords and tenants.

In considering how to give renters more flexibility in personalising their homes and keeping pets there are a number of considerations and differences in the tenures that need to be taken into account, including:

  • Social landlords do not pay for decoration during the course of a tenancy (above a minimum empty house standard) and therefore costs for any damage to a tenant’s furniture or decoration will be borne by the tenant. Social landlords may be financially liable for reinstatement of damage and decoration to allow the property to be re-let but can recharge tenants for damage to fittings such as kitchen units, bathroom suites and internal doors and where a pet has been kept they may have to pay for a deep clean between tenancies. At the end of a tenancy social housing tenants can also apply for financial compensation for improvements they have made to the property, subject to specific criteria.
  • Private landlords are financially responsible for decoration and damage. This can be recouped through the deposit but any costs above the deposit value (which is set by legislation), will often be borne by them. Should the choice of painting and decorating schemes be unusual, the landlord may need to redecorate at the end of a tenancy in order to attract another tenant and even if a pet has caused no damage to the property the landlord may need to deep clean between tenancies to avoid issues with allergies. Landlords may also be concerned about additional damage if the painting is not done professionally.
  • Tenancies in the private rented sector tend to be shorter this could lead to increased costs for landlords of having to redecorate or deep clean soft furnishings frequently. Against that, it is perhaps less likely that very short term tenants would wish to redecorate anyway.

Clearly, there is a balance to be struck and it may be necessary to consider what is reasonable and this could also depend on the length of the tenancy. For example, if a tenant leaves after 5 years it may be reasonable for a landlord to redecorate as part of routine maintenance and with a shorter tenancy it may be reasonable for the tenant to return the property to the original state of decoration, allowing a landlord to re-let without further expense.

3.1 Allowing people to keep pets

We understand that pets are an important part of the family for many and believe private tenants should be able to benefit from the experience of pet ownership, as is the case in other tenures. Studies have consistently shown that owning a pet comes with many benefits for health and wellbeing. Even so, there remains a reluctance amongst some private landlords to allow pets due to perceived risk of property damage or mess.

Currently pets are generally allowed only by explicit written agreement and where a landlord agrees for their tenant to keep pets, the Model Private Residential Tenancy Agreement outlines the expectations that pet owners must meet. The ‘Respect for Others’ clause sets out that tenants should control their pets properly and should not allow them to foul or cause damage to other people’s property. The ‘Pets’ clause sets out that the tenant must not keep any animals or pets in the Let Property without the prior written consent of the Landlord. It also requires the tenant to keep any pet under supervision and control to ensure that it does not cause deterioration in the condition of the Let Property or common areas, nuisance either to neighbours or in the locality of the Let Property.

The Easy Read Notes that must accompany every Private Residential Tenancy make clear that if the tenancy agreement bans pets, a tenant can ask the landlord to change it to allow an assistance dog if the tenant is disabled and needs an assistance dog to be able to live in the property. They also make clear that if the landlord refuses, they may be discriminating on the grounds of disability and could be acting illegally.

We are interested in views on how best to encourage more pet-friendly tenancies. Possible consideration of how the Model Private Residential Tenancy Agreement could be amended to make consent to keep a pet the default position for a responsible pet owner. Landlords using the contract would have to object in writing within a specified timeframe of a written pet request from a tenant to overturn it - and provide a good reason.

Allowing a tenant to keep a pet may encourage them to stay long term. However, along with pet owners in any tenure, they will also need to make sensible choices about whether the accommodation is suitable for different kinds of pets and be in a position to pay for the costs of any damage caused by them. Existing mechanisms are in place should pets contribute to or cause a nuisance to neighbours or anti-social behaviour.

However, we must also ensure that landlords cannot charge unreasonably for damages or cleaning from the deposit of a pet owner and exceptions may be needed, for example where the property deeds limit pet ownership. Tenancy deposits are currently limited to a maximum of 2 times the monthly rent and must be lodged with one of three approved tenancy deposit schemes, who also provide a free adjudication service for tenancy deposit disputes, which will already include disputes that include damage and cleaning relating to pets.

Average monthly rent for a 2 bed property (the most common type of property size in Scotland) at end September 2021 was £693[27], which would allow for an average of £1386 available to offset costs of any damage or cleaning required at the end of a tenancy should that be required. Bearing these points in mind, we have a number of questions to help us develop this proposal further.

Consultation Question: How could a right to keep pets be most effectively introduced for the private sector, for example by the introduction of a statutory right or by amendment to the Model Tenancy Agreement, and should exceptions be allowed?

Consultation Question: Should the right to keep pets also be introduced as a right in the social sector?

Yes, No, Don’t know - Please explain your answer.

3.2 Amend the Private Housing (Tenancies) (Scotland) Act 2016 to allow people to personalise their home by internal decoration.

Within both the social and owner occupied sectors people can pay for decoration and personalisation of the inside of their home as they see fit to make them feel at home. This can make a big difference to how people feel about their home.

A recent report by CaCHE[28] provides some understanding of how living in the private rented sector affects wellbeing and highlights the negative impact of constraints on decorating or furnishing. Difficulties in trying to establish a sense of home while lacking the necessary autonomy can negatively impact wellbeing.

At present under the Private Residential Tenancy, the tenant needs to get the landlord's written consent, in advance, before making any alterations to the property to fixtures and fittings or internal/ external decorating. It's entirely up to the landlord whether or not the landlord agrees to any of these things being done. However the landlord cannot unreasonably refuse any request by the tenant for adaptations, auxiliary aids or services under section 52 of the Housing (Scotland) Act 2006 or section 37 of the Equality Act.

Currently there are often limitations for private sector tenants on issues such as putting up pictures on walls. It must also be recognised that a landlord may have chosen the decoration scheme carefully and spent money on it to ensure that the property can be let easily when a tenant leaves, especially given that tenancies in the private sector can be short lived and have a high turnaround, so the needs of both landlords and tenants must be considered.

Tenancy deposits are currently limited to a maximum of 2 times the monthly rent and must be lodged with one of three approved tenancy deposit schemes, who also provide a free adjudication service for tenancy deposit disputes. This will already cover some disputes relating to damage from the personalisation of the property. We are interested in views on how the current framework could be adapted to enable a right to personalise a privately rented home including on what an appropriate definition of personalisation should be, responsibility for returning the property to an equivalent standard at the end of the tenancy, and how disputes should be resolved.

Consultation Question: How could the right to personalise a privately rented home be most effectively introduced for the sector and what is an acceptable definition of personalisation? For example, should the property be returned to the original state by the tenant where there is no explicit agreement between the tenant and landlord?

Consultation Question: Should different consideration be given where a property is furnished or unfurnished?

Yes, No, Don’t know - Please explain your answer.

Consultation Question: Is there a need to review how a private landlord can be protected against damage to their property caused by personalisation, above the current tenancy deposit limits, and who should resolve disputes?

4. Reform to the eviction process

Background

Prior to the Covid-19 pandemic, Scottish tenants already had significantly more security of tenure than tenants in other parts of the UK at any time of the year. This helps to ensure that tenants are protected from arbitrary eviction.

For private tenants, the introduction of the Private Residential Tenancy in 2017 (through the Private Housing (Tenancies) (Scotland) Act 2016), provided improvements in security of tenure and affordability. Landlords cannot ask a tenant to leave for no reason and must now use one of 18 grounds. In addition, a landlord must give their tenant at least 84 days' notice that the tenancy will come to an end if they have lived in the let property for more than six months, and when a conduct ground is not being used for eviction.

Where a private tenant does not leave the property at the end of the notice period, the landlord must follow the correct legal process to remove the tenant through an application to the Tribunal. A tenant can challenge any eviction action in the Tribunal and they cannot be evicted while their case is being heard. Where the Tribunal issues an eviction Order, the landlord can then legally instruct Sheriff Officers to enforce the Order. Failure by the landlord to follow the legal process would result in an unlawful eviction, which is a criminal offence.

If a private landlord applies to the Tribunal to evict a tenant, they must tell the local council responsible, through a section 11 notice, in case their tenant becomes homeless.

For social sector tenants, the Scottish Secure Tenancy Agreement introduced in the Housing (Scotland) Act 2001, provides strong protection for tenants against eviction. In most cases, including rent arrears cases, it is at the discretion of a sheriff whether to grant an eviction order after considering all of the circumstances of the individual case.

The legislative protection for social sector tenants facing eviction for rent arrears was strengthened further in 2012 by the introduction of pre-action requirements. Before an eviction order can be granted by the court, social landlords must now also satisfy the court that a range of steps called pre-action requirements have been met. These include giving tenants in arrears every opportunity to take up help to maximise their income, to manage their debts and to agree an affordable and sustainable repayment plan.

This means that social landlords must have exhausted all attempts to resolve rent arrears with the tenant before taking action to evict. In addition, where a court order for eviction is granted, the tenant can apply to the court to recall the decree in certain circumstances, such as where the tenant was not represented in court. The tenant can also appeal against the court decision to grant a decree.

These rights not only protect tenants from arbitrary eviction, but also give them time to find alternative accommodation and obtain advice and information on their housing options. Where people may be at risk of homelessness, the authority has a legal duty to provide them with accommodation.

During the course of the Covid-19 pandemic, and in recognition of the gravity of the health crisis facing the country, the Scottish Government introduced a range of further emergency measures to support tenants – including extended notice periods and ensuring all private rented sector eviction cases were considered on a discretionary basis – and took unprecedented action to introduce a ban on the service and enforcement of eviction orders that was lifted in its entirety on 30 September 2021.

Winter Evictions

We know that being asked to leave a tenancy and finding alternative accommodation can prove a stressful and difficult time at any time of the year for tenants.

However, during winter, particularly around the festive period, this can be exacerbated by a reduction in available properties to let, disruption to services due to staff holidays and people facing increased costs (such as utilities) and are at greater risk of financial hardship.

As part of the Shared Policy Programme agreed by the Scottish Government and Scottish Green Party, we now want to build on learning from the temporary Covid-19 eviction ban in order to consider how we could support and further protect tenants from being asked to leave or being evicted from their rented property over the winter period.

4.1 Introduce measures to give tenants more time to access support and find alternative housing during the winter period where they are subject to a notice to leave or notice of proceedings.

Most tenancies in the private rented sector that are brought to an end by a landlord are not formally challenged by the tenant and we therefore have limited data on the number of notice to leaves being issued in Scotland. For the social rented sector, the Scottish Housing Regulator provides information as part of their Coronavirus dashboard[29] on the number of notices of proceedings for recovery of possession issued by social landlords.

Given the challenges that winter can present, we are seeking views on a range of potential interventions to support tenants where they have been given notice to leave by a private sector landlord, or have been served with a notice of proceedings by a social landlord. These could include:

  • the introduction of extended notice periods in relation to most repossession grounds during the winter period, but with exceptions for antisocial and criminal behaviour cases; and where the landlord intends to live in the let property;
  • as an alternative to extending notice periods we could seek to delay the service of the prescribed notice to leave or notice of proceedings during the winter period. This would see any notice to leave issued by a private sector landlord to end a tenancy during a specified period, or any notice of proceedings in the social rented sector not being legally served until the end of the specified winter period;
  • a third alternative would be to extend the period within which eviction proceedings could be raised following expiration of a notice period;
  • where a tenant being in rent arrears is the reason that they have to move – support interventions could include the local authority providing assistance in sourcing a new, more sustainable property and/or undertaking income maximisation;
  • financial support to reduce the rent arrears in order to enable a manageable repayment plan to be established and to prevent eviction; and
  • where it is not possible for the tenancy to be sustained - financial support to assist with the cost of moving.

Options in respect of extending existing legal time periods for serving notice of the end of a tenancy and raising eviction proceedings will require further consideration and analysis.

Consultation Question: Do you think additional protections against the ending of tenancies during the winter period are needed? For example, some or all of the following:

  • restricting the service of notices during the winter period;
  • pausing or extending notice periods so that notices do not expire during the winter period;
  • pausing or extending the period (following expiry of the notice period) during which eviction proceedings can be raised; and/or
  • restricting the ability of landlords to raise eviction proceedings (following expiry of the notice period) during the winter period.

Yes, No, Don’t know - Please explain your answer.

Consultation Question: If measures to restrict the ability of landlords to commence eviction proceedings during the winter period were introduced, what do you think is a reasonable ‘winter period’ timeframe?

Consultation Question: What other policies or interventions could be considered to prevent evictions during the winter period?

4.2 Introducing a specific requirement for the Sheriff Court and Tribunal to consider delaying the enforcement of eviction orders and decrees during the winter period.

While most tenancies come to an end either by the tenant giving notice or by the tenant leaving within the prescribed notice period, some end up as civil disputes.

As set out above, in the private rented sector where a tenant does not leave at the end of the notice period, a landlord is required to make an application to the Tribunal to seek an order to recover possession of the property. In the social rented sector, these types of cases are heard in the Sheriff Court.

Given the additional challenges tenants can experience during winter in finding suitable housing, we are seeking views on introducing a specific requirement on the Tribunal and Courts that, in using their discretion, they would be specifically required to consider delaying the enforcement of an eviction order or decree during the winter period except in cases of antisocial or criminal behaviour.

This approach would allow the Tribunal or Court to:

  • take account of all the circumstances of the case;
  • consider the impact of delaying the enforcement of an eviction until a later date on both the tenant and the landlord; and
  • reach a decision which balances both the rights of tenants and landlords appropriately.

The Courts already have discretion when determining whether to grant a decree for eviction and we have consulted on taking steps through the forthcoming Covid Recovery Bill (consulted on between August and November 2021) to continue discretion for the Tribunal in relation to private rented sector cases on a permanent basis too. Our proposed approach would be an extension and clarification of the Recovery Bill proposals to ensure that, in using this discretion, the Tribunal/Court specifically considers delaying an eviction during the winter period and the reasonableness of this action.

This would be similar to the current provisions within paragraph 12 of schedule 3 of the Private Housing (Tenancies) (Scotland) Act 2016 which directs the Tribunal to take account of any delay to benefits when examining a repossession for rent arrears and considering whether it is reasonable to grant an eviction order. Similar provisions exist for the Courts at section 16(3) of the Housing (Scotland) Act 2001 when considering social rented sector rent arrears cases as they must determine whether it is reasonable to grant an order for recovery of possession.

Consultation Question: Should we introduce a specific requirement for the Tribunal and Sheriff Court to consider delaying the enforcement of eviction orders and decrees during the winter period?

Yes, No, Don’t know - Please explain your answer

Illegal evictions

The criminal offence of unlawful eviction is set out in section 22 of the Rent (Scotland) Act 1984 and covers most types of residential tenancy in Scotland and also protects occupiers, not just tenants.

Section 22(3) of the 1984 Act provides that on summary conviction the maximum fine would be £10,000 or to imprisonment for a term not exceeding six months or to both; or on indictment, the court can impose an unlimited fine or to imprisonment for a term not exceeding two years or to both. Whether a case is prosecuted on summary conviction or on indictment will usually be a question of seriousness and will be for the prosecutor to determine.

In additional to a criminal prosecution, unlawful eviction also leaves the landlord liable to pay damages to the former occupier of the property (see section 36 of the Housing (Scotland) Act 1988). At present, the valuation of damages set out in section 37 of the 1988 Act is the difference between the landlord’s interest in the property with and without a sitting tenant. This requires expensive expert evidence from a surveyor and can lead to a nil valuation being made.

In Scotland, tenants can usually only be legally evicted from their homes by order of the Sheriff Court (for social rented properties) or the First-tier Tribunal for Scotland (Housing and Property Chamber – for private rented tenants). Evicting someone, without obtaining such an order, has been a criminal offence for more than half a century.

Anecdotal evidence suggests that many cases of illegal eviction go unreported, and where a tenant does report the matter to the Police, there is often an inconsistent approach to how police officers handle the situation with many tenants being advised that the dispute is a civil matter. Over recent years, both the Scottish Government and housing stakeholders have worked closely with Police Scotland in an attempt to raise awareness of housing law amongst front line officers. Most recently, front-line call handlers have been issued with training on the matter and are able to advise officers attending reported illegal evictions that the offence is criminal and the relevant legislation that applies.

However, even where police report a landlord who has been found to have illegally evicted their tenant, in reality, the experience is that prosecutions and claims for damages are rare and awards even more so.

Improving the way in which compensation can be awarded and the method of calculating the level of compensation may be a good way to make it easier and more attractive for tenants to challenge an illegal eviction and receive compensation where an illegal eviction has occurred. It must be more difficult, expensive and risky for landlord to pursue an illegal eviction than going through the correct routes.

4.3 Reform how civil damages for unlawful eviction are calculated

There are growing calls for a reform of how unlawful eviction damages are calculated as outlined in a recent briefing paper prepared on the issue by the Legal Services Agency (LSA)[30]. This indicates that the current process for calculating civil damages where an unlawful eviction occurs is outdated, costly, and requires a specialist valuation of the property to be carried out, making it an inaccessible route for many tenants.

Currently, Section 37 of the Housing (Scotland) Act 1988 sets out the mechanism for the valuation of damages where an unlawful eviction has occurred. This calculation requires a professional surveyor valuation of the difference between the landlord’s interest in the property with and without a sitting tenant. This is not only an expensive process but feedback from stakeholders indicates can also lead to a nil valuation.

Only a small number of cases have therefore ever been taken. Reform would help to simplify the process for a tenant to challenge an unlawful eviction increasing access to justice. This would in turn deter landlords from carrying out an illegal eviction as the risk of challenge and penalty will be higher.

Consideration is therefore being given to the LSA proposal to remove the current process for calculating damages for an unlawful eviction and replacing it with a multiple of the monthly rent in line with the approach taken in relation to wrongful termination orders. This would better empower tenants to seek redress where a landlord does not follow the correct legal process for ending a tenancy.

We would be interested in views on what the appropriate parameters of multiplication that the First-tier Tribunal would use for determining the damages paid to a former tenant, where a private landlord has been found to have unlawfully evicted them.

The level of damages should reflect the seriousness and negative impact on the tenant, of an illegal eviction. For example, the LSA proposal suggests a minimum of 6 times and a maximum of 36 times the monthly rent should be set. Other examples of this type of approach currently in use are penalties in relation to a wrongful termination order would be a maximum of 6 months’ rent.

Based on the average rent of a 2 bedroom property in Scotland (£693[31]) these examples would result a maximum level of damages of:

i. 36 times = £24,948

ii. 6 times = £4,158

Consultation Question: Do you agree the current calculation for unlawful eviction should be reformed and simplified, as proposed?

Yes, No, Don’t know - Please explain your answer.

Consultation Question: If the current system for calculating damages was reformed in this way, what do you think would be the appropriate minimum and maximum level of multiplication that the First-Tier Tribunal for Scotland (Housing and Property Chamber) could apply?

4.4 Increasing penalties for non-compliance and illegal action

In addition to potentially reforming how unlawful damages for illegal eviction are calculated, the Scottish Government would like to consider whether any further legislative action in this area would encourage and enable tenants to exercise their rights and seek redress.

In particular, we want to consider what other action could be taken to address non-compliance and illegal behaviour where a criminal prosecution has not taken place. For example, further use of fines. Such an approach is likely to help establish a clear principle that it is a significant financial risk for a landlord to evict illegally, and therefore act as a clear deterrent and thus encourage landlords to follow the correct legal processes for eviction. This is discussed further in Chapter Six.

Consultation Question: What other ways can we make it easier and more attractive for victims of illegal eviction to seek redress and exercise their rights?

Consultation Question: In the event of a criminal prosecution not taking place, how best can we ensure that a tenant is compensated, where evidence exists of an unlawful action?

5. Supporting Students

For those students living away from their family home there tends to be two main types of accommodation options - either halls of residence/purpose built student accommodation or private rented accommodation. Each of these options have their own associated tenancy arrangements.

Although the Scottish Government has no direct role in the provision of student accommodation nor with capacity within the private rental market, we are aware of the pressures relating to these. That is why the Scottish Government is committed to bringing forward a Student Accommodation Strategy for Scotland, which, in part will be informed by a review of Purpose Built Student Accommodation. We will look to develop and incorporate our Student Accommodation Strategy alongside and within the final Rented Sector Strategy.

The review will include issues such as supply, affordability and wider planning and regulatory issues. Work on the review is being driven forward by a Review Group, which includes Universities Scotland, the Scottish Funding Council and NUS Scotland and we are also progressing other related pieces of work, including our commitment to a Guarantorship scheme.

Students renting from a mainstream private landlord will have a Private Residential Tenancy, which provides the same rights to students as any other person living in the private rented sector. However, Purpose Built Student Accommodation is exempt from the private residential tenancy because it does not form part of the mainstream private rented sector due to Purpose Built Student Accommodation providers effectively acting as private providers of ‘halls of residence’ accommodation.

While this enables such providers to continue to fulfil their obligations under nomination agreements to accommodate students from Higher and Further Education Institutions, there are growing concerns in relation to the disparity of rights and protections that exist between students living in Purpose Built Student Accommodation, compared to those renting from a private landlord.

In contrast, some private landlords who rent their properties to students have signalled that the introduction of the Private Residential Tenancy has negatively impacted their business model and resulted in a decline of private rented accommodation for students.

They claim that excluding Purpose Built Student Accommodation from the Private Residential Tenancy creates an unfair advantage due to such providers being able to lock students into a certain length of rental contract. Whereas private landlords, who are serving the same market, can be given 28 days’ notice from their tenants and therefore result in loss of income and increasing financial risk.

Action: We are committed to working with students and other key stakeholders across the housing and education sectors to develop a Student Accommodation Strategy for Scotland informed by the PBSA review.

Consultation Question: Should students living in Purpose Built Student Accommodation be offered similar rights to students who rent from a private landlord? If so, how can we best achieve this without impacting on the supply of Purpose Built Student Accommodation?

Yes, No, Don’t know - Please explain your answer.

Consultation Question: Are there any particular aspects of the Private Residential Tenancy that are not working for the student market and what, if any changes/amendments, would help to address these or to encourage landlords to rent more to students? Please explain your answer.

6. Rent Guarantor Scheme

Sometimes private landlords and letting agents will ask for a tenant to provide a guarantor to secure a tenancy. This might be because the tenant doesn’t have a stable income, has a poor credit score or is unable to provide suitable references. Although any tenant in these circumstances may be asked to provide a guarantor, guarantor requirements are common practice for student tenancies.

Using a guarantor provides reassurance to the landlord, or their agent, that should the tenant not pay the rent, or other tenancy related costs, that the guarantor will do so in their place. A guarantor is often a parent, guardian or friend but where a young person is estranged from their family or does not have a support network they can call upon, being unable to find a guarantor can be a barrier to accessing the private rented sector. Foreign students can also find it difficult to provide a UK based guarantor.

Where a person can’t provide a guarantor, landlords may ask tenants to pay rent in advance as an alternative. There are also a number of commercial and insurance based schemes available but not all tenants can make use of these options.

There are a number of Rent Guarantor Schemes already in operation in Scotland, provided mainly through Universities. We have begun to collate information from across the sector on the models in use here in Scotland and to examine other schemes which exist in the rest of the UK. We have also consulted on a potential philanthropic charity-based model with Stand Alone, a charity which provides support for estranged students. Further work is required to identify the costs of introducing a scheme and to consider how a potential scheme may be funded.

We are therefore working with our Purpose Built Student Accommodation Review Group to consider how we can support the delivery of Guarantor Schemes for estranged young people. We are interested in views on current provision of guarantor schemes in Scotland, as well as how we can support further schemes to be established to increase access to the private rented sector.

Consultation Question: What would be the key features of an effective guarantor scheme?

Consultation Question: How could we support the development of guarantor schemes that meet the needs of those groups who could benefit from them?

Non-Standard Rented Accommodation

The vast majority of people either own their home or live in the private rented sector or the social rented sector. However, there are an important minority of people for whom these classifications either don’t apply or are not straight forward.

This Strategy is looking to support all tenants to have the same outcomes, high quality and affordable accommodation, even where the structures are different.

7. Gypsy/Traveller Communities

According to the 2011 census[32] - approximately 14% of Gypsy/Travellers lived in caravans, or other mobile or temporary structures. Gypsy/Travellers were half as likely to own their homes and twice as likely to live in rented accommodation as the general population. Research evidence published in ‘Is Scotland Fairer[33] and confirmed by Scottish Government’s analysis of the 2011 Census shows that on every indicator of what is required to live a happy, productive and fulfilled life, Gypsy/Travellers are worse off than any other community in Scotland.

For Gypsy/Travellers, an adequate home may be accommodation that enables them to follow cultural traditions, either in a residential mobile home or caravan. Many Gypsy/Travellers stay in the same location for the long term and want the same secure tenancy as people in the social or private rented sector.

The accommodation on the 26 publicly provided Gypsy/Traveller sites across Scotland does not meet the definition for housing or a dwelling and therefore sits outside the social rented sector. Gypsy/Travellers have individual occupancy agreements with the site provider. The Scottish Social Housing Charter includes an outcome for Gypsy/Traveller sites which highlights the responsibility of Landlords to ensure that residents have occupancy agreements which reflect the rights and responsibilities set out in the Minimum Standards for Gypsy/Traveller Accommodation.

Improving the Lives of Gypsy/Travellers, our joint Action Plan with COSLA, sets out our commitment to more and better Gypsy/Traveller accommodation. In Housing 2040, the Scottish Government committed up to £20m from 2021-26 to the Gypsy/Traveller Accommodation Fund. Building on the £2 million of short term funding in 2020/21, this represents a sustained investment to support local authorities to improve and widen access to Gypsy/Traveller accommodation.

To drive a significant improvement in the quality of sites going forward, we have published an interim Site Design Guide for Gypsy/Traveller sites, developed in conjunction with residents and local authorities. This will set the standard for new accommodation, in keeping with the key principles such as accessibility and energy efficiency, which are important for all our homes.

Needs vary for different communities and pitch agreements need to balance the need for flexibility for residents to pursue cultural traditions of travelling, with security of tenure, while ensuring equality with the settled community. We will work with local authorities to examine pitch agreements and rent affordability through the demonstration projects under the Gypsy/Traveller Accommodation Fund to share good practice and inform future policy.

Consultation Question: What are the key issues and concerns relating to current pitch agreements for Gypsy/Travellers on public sector sites?

8. Residential Mobile Homes

People living in residential mobile homes are more likely to be older and on fixed incomes as they are a popular option for those wishing to retire or downsize. Owner occupiers of residential mobile homes tend to live on established sites, renting a pitch for their home under the Residential Mobile Homes Act 1983 (and related regulations), which control the consumer rights of mobile home owners.

It sets out terms which must appear in the “written statement”, which covers things like the location and size of the pitch, pitch fees and park rules – as well as consultation with residents and residents’ associations. In 2013, the Scottish Government used secondary legislation to change the implied terms that are automatically included in every contract between a permanent resident and a site owner. e.g. to remove the requirement for the site owner to approve the purchaser of a mobile home, a 28 day period to consider the terms of the agreement before signing up, to improve protections for residents.

The Housing (Scotland) Act 2014 established the framework for a new, robust, licensing system for mobile home sites with permanent residents. Introduced on 1st May 2017, this gives local authorities a range of tools to make sure sites meet modern standards. The requirement for sites to have a licence came into force in May 2019. In Spring 2021, the Local Government and Communities Committee gathered evidence on issues relating to the licencing of residential mobile home sites. Stakeholders reported a number of concerns, centred on the rules for and operation of the fit and proper person test and the enforcement of the licence conditions. We continue to consider this evidence and intend to carry out a post implementation review of the Residential Mobile Homes Site Licencing scheme, as recommended by the LGCC, before the end of this Parliament.

In addition to those who rent a pitch for a mobile home that they own, there is a small number of people who rent a residential mobile home as their main home. We do not have good up to date evidence of how legislation to improve protections for renters have impacted on those who rent mobile homes. In conjunction with the development of the single housing standard, which will include residential mobile homes, we will gather information to improve our understanding of this sector and identify potential gaps in protections to inform future policy.

Consultation Question: If you rent or let a residential mobile home as a main residence, what type of tenancy do you have and what are the common problems you experience?

9. Agricultural/Crofting/Tied Worker Tenancies

‘Housing to 2040’ explicitly committed the inclusion of agricultural tenancies, within the tenure neutral approach to driving up standards and rights.

In our 2021 Programme for Government, there was a commitment to develop a Remote, Rural & Islands Housing action plan, to meet the housing needs of, and retain and attract people to, those communities.

Housing forming part of an agricultural holding (tenant farm) or rented croft house is subject to agricultural holdings and crofting legislation and the treatment of the houses within those leases are subject to the details of the individual leases. Where the tenancy includes agricultural land exceeding two acres, or if it is a ‘relevant agricultural tenancy’ the tenancy cannot be a private residential tenancy, and therefore people living in such arrangements do not have the rights afforded to them that those living in the mainstream private rented sector do.

We also know that many farmers and their families are living in substandard homes, which if provided by a private landlord would be unacceptable. This is explored further in Chapter Five.

As part of our work to ensure a tenure neutral approach to improving standards and rights across the rented sector – we want to explore how we can improve security of tenure for those living in the range of agricultural tenancies.

Initial stakeholder engagement with people who have lived experience suggests that one overwhelming issue is that of security of tenure at the end of employment – particularly for those people living in tied accommodation.

For example, gamekeepers have no rights of security and very little protection if their employment ends or if the landlord wants the property for another use. Many have to rely on verbal assurances that they will be able to remain in their property, post-retirement for as long as they wish – however a fear remains that should the relationship with their landlord breakdown, they could be asked to leave.

Others have been asked to vacate their home upon retirement – losing a home they have lived in for many years and being forced to move away from an area where they have put down roots over many years, due to no other accommodation being available.

Action: Given the complex nature of agricultural holdings, rented croft houses forming part of a croft and tied worker accommodation and tenancy rights variations that exist across Scotland, we will undertake a mapping exercise to establish the differences in rights and to explore which should be applied equally with those already offered via the Private Residential Tenancy.

Consultation Question: What do you believe are the key housing issues facing people with:

1. A tenant farm or a rented croft house?

2. Tied accommodation as part of their employment?

Consultation Question: What can we do to improve the outcomes for those people with a tied house for their employment who are approaching retirement and may face losing their home?

Conclusion

Delivering a New Deal for tenants in Scotland will help build on the important work that has already taken place in recent years to improve rights and security of tenure for the large number of people and families who rent. But the time is right to do more, and to go further, in order to deliver more secure and stable tenancies – with improved standards of accommodation and more flexibility to personalise a rented home.

We are seeking your views on a complex range of issues, which will take time to develop and deliver. However, our intention is to deliver further change to the rental sector over the course of this Parliament and much of the New Deal for Tenants is expected to be introduced in legislation in the 2nd year of this Parliament.

Improving rights however, must be delivered alongside work to make rents more affordable, and how we can best achieve this is explored further in Chapter Four.


Contact

Email: rentedstrategyconsultation@gov.scot