Pre-Covid, section 33 of the Housing (Scotland) Act 1988 was the “no fault” route to recovery of a short assured tenancy.
A private landlord could issue the relevant notices to bring the tenancy to an end and pursue a successful action for eviction in the event the tenant failed to vacate. No reason was required and the circumstances of the tenant were entirely irrelevant.
The situation changed significantly in April 2020 and the recent passing of the Coronavirus (Recovery and Reform) (Scotland) Act 2022 will make these changes a permanent feature of the legislation from 1st October 2022. Private landlords cannot simply recover a short assured tenancy because they want to. They must establish that eviction is reasonable in the circumstances.
What sort of factors would be considered in determining reasonable?
The landlord must put forward a compelling reason why the tenant should be evicted. The fact the contractual tenancy has come to an end and the landlord wants the property back is unlikely to be sufficient.
In the case of Rennie v Kimmins, the landlord was in a position to satisfy the Tribunal that eviction was reasonable on the basis that the mortgage term had ended and the property required to be sold in order to fund the repayment of the mortgage. There were also concerns raised regarding the condition of the property, the tenant’s failure to provide access for safety checks and arrears of rent. Further, in the case of Davies v Ferguson, it was reasonable to evict on the basis the tenant has accrued arrears of rent and the landlord continued to require to make monthly mortgage payments despite non-payment.
Accordingly, changes in the personal and financial circumstances of the landlord and tenant will be relevant in establishing reasonableness.
The problem, however, with a discretionary test is that whilst a landlord may consider the reason for eviction compelling, the Tribunal, in weighing any information provided on behalf of the tenant, may take a different view.
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