This is a blog post about private renting in Scotland. More specifically, it is about a legal device that can be available to those who had rented a property under a private residential tenancy – the prevailing letting vehicle in Scotland since 1 December 2017 – where their landlord has been fly and regained possession of the let property when they had no legal ground to do so.
This post doubles as a signpost to a piece I have in the new issue of the Scots law journal the Juridical Review (co-authored with Peter Robson). It also links to a related podcast episode, where I discuss the article and various other matters with Professor Bram Akkermans of Maastricht University.
Let’s start with a quick overview of the relevant law. Scotland introduced a new private residential letting vehicle, known as the private residential tenancy (PRT), when the Private Housing (Tenancies) (Scotland) Act 2016 came into force. Unlike the short assured tenancy (the letting vehicle that dominated the Scottish private rented sector after its introduction by the Housing (Scotland) Act 1988), PRTs cannot be of a set length. PRTs are essentially open-ended, provided that the tenant lives in the let property as their main home, pays their rent, and doesn’t somehow breach the tenancy agreement.
Accordingly, tenants with a private residential tenancy of a dwelling in terms of the Private Housing (Tenancies) (Scotland) Act 2016 should be able to live there until they decide to move out, unless their landlord has a ground to evict them in terms of the 2016 Act. A finite list of grounds is provided in Schedule 3 of the 2016 Act, including grounds that relate to the landlord’s circumstances (such as requiring the property to live in for themselves or a family member, or needing to sell the property with vacant possession).
This means that landlords who grant such tenancies need to rely on one of eighteen statutory grounds to recover possession of a let property. The grounds reflect the fact that a landlord’s circumstances might genuinely change – for example, the landlord may have been renting property in another city for work and then takes a new job in the city where the let property is, or is living with a partner in a property owned by that partner and then the relationship breaks down. Such a landlord will need somewhere to live and – despite any upheaval for the tenant(s) who currently live there – the let property might well be a much more viable place for the landlord to stay than buying or renting another property. Alternatively, a landlord’s sibling might need accommodation in the area and have nowhere else to stay. In these and other circumstances, the landlord can approach a tribunal for an order to evict the tenant(s).
Assuming a ground for possession exists and has been notified to the tenant, the tenant might be obliged to vacate the premises through subsequent eviction proceedings at the First-tier Tribunal (Housing and Property Chamber), or the tenant may simply move out without awaiting a tribunal order. If a (now former) landlord did indeed have a valid ground for possession, that would be the end of the matter, but what happens if a landlord did not have a genuine reason for recovery of possession, but pretended that they did?
Where it transpires there was no ground for possession after all, the 2016 Act allows a (now former) tenant to apply to the First-tier Tribunal for something called a wrongful-termination order. Where a WTO is made, the former landlord can be ordered to pay the former tenant a penalty sum up to six times the monthly rent that was payable.
How does this work in practice? Or rather, is the system working in practice? That is what the article in the Juridical Review is about. It looks at the emerging WTO tribunal jurisprudence, and argues that former tenants are facing significant hurdles in terms of unlocking this remedy.
To date, there have been 21 applications for a WTO. Only three have been successful (resulting in penalty awards against the former landlord of three times the monthly rent in two cases, and one times the monthly rent in the other). Those cases are highlighted in the article, but of more interest are the WTOs that got away. The reasons for the eighteen unsuccessful applications are discussed in the article in some detail. A quick overview is provided here.
Some applications may have been procedurally unsound and as such there is not too much to say about those. There is a separate access to justice point about whether legal aid thresholds are such that applicants are not able to access professional support to frame and present their applications properly. I’ll gloss over that here.
Some applications have failed because the tribunal was happy enough with the landlord’s explanation of what happened (for example, a family member had been planning to move in but that did not happen after all), and again there is not so much that can be said about those cases.
That leaves the cases where former tenants have not been able to obtain a WTO because the former landlord did not serve papers that amounted to a formal notice to leave in terms of the 2016 Act. The tribunal has been fastidious in requiring this, because this is, apparently, what the legislation says. The effect of this interpretation is to deny WTOs to tenants who have been sent emails, text messages or WhatsApp messages instead of proper notices to leave and acted on those representations rather than await more formal correspondence. For reasons explained in the paper, Peter and I think this is unfortunate.
Lastly, the paper also notes the interaction of wrongful-termination orders and the older route to damages for unlawful eviction of a residential occupier under the Housing (Scotland) Act 1988. We think this requires consideration, to ensure those who have been faced with dubious conduct by a former landlord do not fall between the cracks.
And this is where I stop blogging and direct you to some other resources on the matter. One of these resources is an episode of the PropertyCon Podcast, the other is the article itself.
Starting with the podcast episode, Professor Bram Akkermans of Maastricht University has recently started a podcast called PropertyCon. Episode 6 of the PropertyCon Podcast sees him interviewing yours truly.
He has some “Podcast Notes” about the episode, as “snipped” below. I also offer some additional resources that I mention in the podcast below for reference.
The article itself can be found at page 88 of the 2021 Juridical Review. For those unable to access the piece on Westlaw or through Thomson Reuters’ Proview service, there is a short embargo period before I can make an open access version available. That being said, if any of you would like a copy, please drop me a line at email@example.com.
Finally, if any of you hear of any cases or situations where a WTO has been raised as a possibility, please do drop me a line. My hope this article serves as the start of a discussion, and perhaps even presages a refinement of the approach that has been adopted to date.
Oh, and the title of this blog post? It’s a play on the whole “Let’s go [World Trade Organization]!” that was a bit of a Brexit mantra for some. I wanted that in the title for the article but Peter suggested, politely, that this was a bit naff. He was probably right, although we might have gathered some accidental and confused readers who were expecting an article on international trade law. We went for a much more functional title instead, namely: “A review of the first wrongful-termination orders made under the Private Housing (Tenancies) (Scotland) Act 2016: do they sufficiently protect those misled into giving up a tenancy?” Perhaps not the catchiest, but we hope it is effective.
Here are some resources I mentioned in the podcast episode.
This was the book launch for Combe, Glass and Tindley (eds) Land Reform in Scotland: History, Law and Policy (2020): https://www.youtube.com/watch?v=JXcqFOfExsY
This is Jim Hunter’s book on the Sutherland clearances: https://birlinn.co.uk/product/set-adrift-upon-the-world/
This is the Residential Tenancies: Private and Social Renting in Scotland book by Robson and Combe (2019): https://www.sweetandmaxwell.co.uk/Product/Landlord-and-Tenant/Residential-Tenancies/Hardback/30799755