Section 3: Should there be an option of serving documents electronically, subject to a tenant's and landlord's prior agreement
The consultation paper explains that while section 10 of the 2016 Act requires a landlord to give a tenant a written document setting out all of the terms of the tenancy, paragraph 6 of schedule 4 to the 2016 Act disapplies the Requirements of Writing (Scotland) Act 1995 from the new tenancy. This means that there are no particular legal requirements in relation to providing a hard copy of the written tenancy terms agreement or obtaining signatures or witnesses.
The Scottish Government does not intend to specify in the secondary legislation how documents under the new tenancy should be served on a person, so the provisions of the Interpretation and Legislative Reform Act 2010 ( ILRA) will automatically apply, and the delivery methods set out in section 26 of ILRA will apply to all documents issued under the new tenancy. This means that where the 2016 Act requires a document to be served on a person, it could be served by: personal delivery; post (by recorded delivery); or, if agreed with the recipient in advance and in writing, by "electronic communications" (such as Email). These options will enable a landlord and a tenant to communicate in a way which suits them best.
Question 33: Do you agree that a landlord and tenant should have the option of serving documents electronically to the electronic mail address provided by the relevant party, provided they have both previously agreed in writing to this?
Table 9: Do you agree that a landlord and tenant should have the option of serving documents electronically to the electronic mail address provided by the relevant party, provided they have both previously agreed in writing to this?
A clear majority of respondents thought there should be the option to serve documents electronically.
In total, 26 respondents made a further comment on Question 33 and several of these comments were extensive. Several respondents expressed a view that it was sensible to use Email as a means of communication for routine issues - but not as the only way of serving documents as important as notices. Specific issues of concern identified by respondents included:
- It is not clear exactly what 'electronic communications' includes.
- Although it is stated there should be agreement in writing by both parties, the tenant may not realise they have the option to refuse or may feel unable to do if they believe the landlord will not proceed with the tenancy as a result. If this proposal goes ahead, any agreement should be in a separate document that makes clear that the tenant has other choices.
- The tenant may not fully appreciate the importance of the documents to be served by Email if they agree to this.
- It is difficult to prove whether and when an Email has been sent or received. This could lead to disputes about whether notices have been served being referred to the First-tier Tribunal.
- Even if this is agreed at the start of the tenancy, a tenant may lose access to Email - either because of financial problems, or being physically unable to pick up Email for various reasons, such as being a prisoner on remand.
- This provision may disadvantage tenants without access to or skills to use the internet and put an additional burden on the advice services to whom they turn for help.
Respondents in agreement with the proposal raised a number of practical issues including:
- It is important to emphasise that it is the responsibility of both parties to ensure that Email details are kept up to date.
- An agreement to serve documents by Email should be incorporated into the MTA.
- Consideration should be given to how to prove Email has been sent or received.
- Clarification was sought regarding the use of electronic signatures including whether landlord and tenant may agree what sort of electronic signature would be acceptable. It was also suggested that use of electronic signatures should be specified in secondary legislation.
Email: Alan Garft