In our guest blog solicitor Rory Cowan of BKF & Co explains the latest developments in Scotland’s evolving private rented sector.
The Scottish Government, has just published the Commencement Order setting out when the new Private Residential Tenancies (PRT) will come into force. The date, which was not a particularly well-guarded secret, is 1st December 2017. Its imaginative full title is The Private Housing (Tenancies)(Scotland) Act 2016 (Commencement No.2 and Saving Provision) Regulations 2017 and can be found using this link https://www.legislation.gov.uk/ssi/2017/293/regulation/3/made .
From that date, no new assured or short assured tenancies can be created and all new residential lets to individuals will have to be by way of the new PRT.
Whilst that date has now been set down, those of us working in the Private Rented Sector in Scotland still await further details and information such as the final version of the new Model Tenancy Agreement which sets out the mandatory core rights and responsibilities of the parties to a PRT. Indeed, we still await further regulations to set out what other documents require to be given to tenants with the new Model Tenancy Agreement and when creating a PRT – for example whether a Tenant Information Pack will be required.
As lettings agents and landlords require to adapt their styles and procedures to incorporate the new requirements, the earlier all this is available the better. A smooth transition to the new regime can only be in the interests of all those involved including tenants.
The Commencement Order also provides for an additional saving provisions to deal with existing short-assured Tenancies and their renewal. I have blogged previously that the transitional provisions in the Private Housing (Tenancies)(Scotland) Act 2016 contained a sting in the tail. This blog can be found using this link http://bkf.co.uk/blog/private-housing-tenancies-scotland-act-2016-transitional-provisions/ .
The saving provision in the Commencement Order states that, notwithstanding the terms of the transitional provisions in the 2016 Act, that in the following situations, existing short-assured tenancies will remain short-assured tenancies:
- Where it was created before the 1st of December 2017;
- Where a new contractual tenancy came into being that fulfils the requirements of section 32(3)(b) of the Housing (Scotland) Act 1988 (as it is now) before 1st of December 2017; and
- Where a new contractual tenancy that fulfils the requirements of section 32(3)(b) of the Housing (Scotland) Act 1988 after 1st December 2017.
The requirements of section 32(3)(b) of the Housing Scotland Act 1988 (as it stands now) are:
- There be a new contractual tenancy comes into being for the same or substantially the same premises;
- That it comes into being at the ‘ish’ or contractual end date; and
- That the landlord and the landlord and tenant are the same under the new contractual tenancy as at the ish.
If these requirements are fulfilled, then any new or continued tenancy will still be a short-assured tenancy regardless of the length of that tenancy or whether the form AT5 is served on the tenant before that new contractual tenancy comes into being.
The effect of this saving provision is that, existing short-assured tenancies will remain as such after 1st December 2017 and if they continue on a rolling basis (usually one or two months at a time) they will remain short-assured tenancies. I also take the view that, the same saving provision allows contractual extensions for any period even where constituted by a new or separate extension document to remain as short-assured tenancies where such an extension meets the requirement of section 32(3)(b) as mentioned above.
So, it looks like things are beginning to be lined up for the ‘brave new world’ of PRTs all that remains is for the rest of the regulations to be put in place and the that the new First-tier Tribunal be ready to start dealing with cases. I suspect it is going to be a busy time for the Scottish Government over the next few months!
If you wish to find out more about the changes or to discuss how you can get ready for them, please contact your local office.
For more information on the author, click here: Rory Cowan