The Coronavirus (Scotland) (No. 2) Act 2020

The Coronavirus (Scotland) (No. 2) Act 2020 (the No.2 Act) received Royal Assent on 26 May 2020 and came into force on 27 May 2020. The No.2 Act introduces further emergency measures and adds to the changes made by the Coronavirus (Scotland) Act 2020.

Pre-action requirement for possession or eviction orders based on rent arrears (whether PRT or Assured/Short-assured Tenancies)

In considering whether it is reasonable to make an eviction order or an order for possession against a tenant based on rent arrears, and where part of the arrears was incurred from 27 May 2020 onwards, the First Tier Tribunal will have to consider to what extent the landlord has complied with new pre-action requirements before raising the application for possession.

To what extent such non-compliance will affect a tribunal’s decision is not known and it may be that further guidance will become available to assist with that. What is certain that, a failure to comply will reduce the chance of a successful recovery based on rent arears.

Full details of these pre-action requirements will be issued by further regulations. They will likely include:

• providing information to the tenant about the terms of the tenancy;
• rent arrears; and
• what steps have been taken by the landlord with a view to seeking arrangements with the tenant for payment of future rent, rent arrears and any other outstanding financial obligation under the tenancy.

What we do not know just now is at what stage (for example before, during or after notices are served) compliance with these pre action requirements will be expected to be provided to tenants and how they will have to be intimated. Hopefully, this will be clarified by the regulations in due course. That said, it would not have been unreasonable to expect the regulations immediately on the Act No.2 coming into force as technically compliance with them applies from 27 May 2020 onwards.

Student tenancies

The No.2 Act introduces a 28-day notice period for new agreements entered into by students. These are tenancies that sit outside the Private Residential Tenancies (Scotland) Act 2016 and are therefore only applicable to certain landlords such as Universities and the Institutional Providers in the Purpose-Built Sector. This will ensure that students who enter into new accommodation contracts for the next academic year, but are then unable to take up the accommodation as planned due to the ongoing COVID-19 restrictions, will be able to give notice and not be held liable for accommodation they are not using for the full contract term.

Council Tax Exemption student accommodation

Any dwellings occupied by students, as defined in the Council Tax (Exempt Dwellings) (Scotland) Order 1997, that due to COVID-19 became vacant on or after the 17 March 2020, and while the dwelling remains unoccupied, will be considered as exempt from council tax.

LBTT – Additional Dwelling Supplement

The period that a previous main residence can be sold, and repayment of Additional Dwelling Supplement claimed for certain transactions has been increased from 18 months to 36 months.

Timetable

The changes are intended as temporary measures for the duration of the Coronavirus outbreak. They will, once in force be with us until 30 September 2020. However, there are provisions to allow these to be extended for two further six-month periods. Whether that will happen is not known yet, but there may be an appetite to keep at least some of the provisions for longer than the initial 6 months.

If you require any further information or advice, please contact Rory Cowan (https://bkf.co.uk/people/rory-cowan/#more-272).