The key change is the removal of the no-fault' ground for repossession. In other words a landlord will no longer have the ability to simply ask a tenant to leave after the expiry of the tenancy agreement.
Instead there will be 16 grounds to enable landlords to recover their properties. 12 are mandatory, i.e. the Tribunal must grant an eviction order, whilst 4 have a discretionary element, i.e. the Tribunal will have a final say over whether eviction should be granted (a test of reasonableness). Which are mandatory and which are discretionary is still under review by the Scottish Government.
The grounds are
- landlord intends to sell (mandatory)
- landlord intends to refurbish (mandatory) ( tenants removal costs to be paid by the landlord)
- landlord or family member intends to live in property (mandatory) (at least 3 months as principal home).
- landlord intends to use for non-residential purpose (mandatory)
- property required for religious purpose (mandatory)
- no longer an employee (mandatory)
- no longer a student (mandatory)
- not occupying let property (mandatory)
- breach of tenancy agreement (discretionary)
- rent arrears (discretionary)
- criminal behaviour (mandatory)
- anti-social behaviour (entirely discretionary)
- landlord has ceased to be registered (mandatory)
- property to be sold by lender (discretionary)
- HMO licence has been revoked (mandatory)
- Overcrowding statutory notice (mandatory)
Presently there is no exemption from the removal of the no fault' ground either for holiday lets or student lets except where the tenant is no longer a student. The Government is reviewing this and it is possible there could be changes.
The grounds for possession because of anti-social behaviour is presently wholly discretionary. This is a significant concern for landlords because anti-social behaviour is often difficult to prove. However it looks likely to remain a discretionary ground. This is potentially the most problematic area of all for landlords it may become really difficult to evict a tenant who is a nuisance.
It is possible that the rent arrears ground presently proposed at arrears of 3 or more consecutive months will be lengthened, possibly to as much as 6 months.
The removal of the no-fault' ground will be a major change in lettings. It will make many landlords and would-be landlords think twice about letting out their property. Careful tenant selection will become essential in the future.
At this point, it is understood that existing tenancy agreements will be unaffected when the legislation is passed. The no-fault' ground for termination will still be available. However, this may yet change as the Bill progresses through its Parliamentary stages.