Scottish Landlord and Tenant Law and the Coronavirus (Scotland) (No.2) Act

Here comes another blog post that does not have a hidden message of any sort. It’s just about the most recent coronavirus statute passed by the Scottish Parliament, with a particular focus on landlord and tenant law. If this is not your bag, please tune to a different station now.

The Coronavirus (Scotland) (No. 2) Act 2020 received the Monarch’s seal of approval on 26 May 2020 and came into force on 27 May 2020. It does not have as drastic an effect on the private rented sector as the previous Coronavirus Act: those changes are digested in an earlier blog post here. That being the case, it does have some important provisions in Schedule 1 (entitled “Protection of the Individual”). From a landlord and tenant law perspective, the changes in this schedule make it much easier for a student renting in bespoke student accommodation to bring her tenancy to an end. Those changes are the main focus of this blog post.

Schedule 1 of the No.2 Act also provides the foundation for a pre-action tickbox that private sector landlords must comply with prior to any eviction proceedings that might happen further down the line (it being recalled the First-tier Tribunal (Housing and Property Chamber) is not fully open for eviction business as things stand in any event). Those pre-action requirements will need further legislation (by way of regulations), so it is too early to comment on these incipient measures in detail. All that can be said as a result of the foundations laid in the No.2 Act is that the regulations will make provision about “information to be provided by a landlord to a tenant including information about the terms of the tenancy, rent arrears and any other outstanding financial obligation under the tenancy” and “steps to be taken by a landlord with a view to seeking to agree arrangements with a tenant for payment of future rent, rent arrears and any other outstanding financial obligation under the tenancy“.

Also worth a mention is Schedule 4 of the 2020 Act, which will be relevant to some landlords who have let (or are letting) to students. In such a situation, neither landlord nor tenant had to worry about council tax (owing to students being exempt, and this being a tax that falls on the occupier). Now, where a dwelling that had a student occupier becomes unoccupied for a reason relating to coronavirus on or after 17 March 2020 and remains unoccupied, council tax liability does not instantly spring into being for the owner.

Enough about that other stuff. As noted, my primary focus in this post is on the changes that apply to rented student accommodation in Scotland.

Student accommodation has been offered for rent by UK educational institutions for quite some time. University halls and dorms and the like have been traditionally exempt from the Rent Acts, and this exemption was actually a result of some universities with attractive accommodation seeking to ensure students did not stay on in such accommodation after graduation. As a result, campus accommodation was given special status. This did not, however, apply to standard private sector tenancies of students. Rather, it was limited to certain approved institutions of universities, colleges and a few special bodies like the Royal College of Surgeons.

These bodies continue to be outwith the private residential tenancy (PRT) regime that now prevails in Scotland, in terms of the Private Housing (Tenancies) (Scotland) Act 2016. They are listed in paragraph 5(2) of Schedule 1 of the 2016 Act. That schedule also lists various other tenancies that are not caught by the 2016 Act (such as holiday lets, agricultural land, social housing, accommodation for asylum seekers and, after a recent amendment to the law, accommodation provided to veterans or care leavers by charities).

During the consultation period about the provision of security of tenure for the PRT system that Scotland was eventually to introduce in the 2016 Act, it was pointed out and indeed felt that not providing for non-educational landlords of purpose built [commercial] student accommodation could lead to difficulties. Anecdotally, I can confirm that such landlords have played an important role in Scottish university cities, including when universities themselves have lacked sufficient accommodation for a new [residential] student intake, so it would be unrealistic not to acknowledge them as part of the housing mix that students might have resort to. The provision for such landlords was to carve them out of the security of tenure-bearing PRT, making it relatively easier to regain possession of such property from student tenants at a certain time. Whilst security of tenure is a policy that can be (and was) pursued for some residential tenants, the need for such student accommodation providers to programme the availability of their properties and having certainty as to when they would regain possession was preferred in this specific context.

The 2016 Act did this by expanded on the traditional groups of landlords exempted from the old assured and protected tenancy regimes in the residential sector. A new concept was created called the “institutional provider of student accommodation”. Where a landlord lets properties in the same building and these include at least 30 bedrooms and the landlord uses the other properties predominantly for the purpose of housing students, they are exempted from the PRT regime. There is one further requirement though. In addition, planning permission must have been granted on the basis that the let property would be used predominantly for housing students (Sch.1 para.5(3)(a)). (More on that planning provision point below.) Any landlord who has a portfolio of individual properties that happen to have student tenants in them will not be treated as exempt from the PRT regime, but a landlord with 30 or more properties grouped together, as can be seen in all of Scotland’s university cities, can be covered by the exemption in Schedule 1 of the 2016 Act.

Fast forward to 2020. Suddenly COVID-19 has changed everything, and my guess is many such landlords are in no way worried about getting tenants out of buildings that, in planning permission and marketing terms, are for student residences. Instead, the self-interested landlord’s focus in the current market is keeping tenants in. From the perspective of students though, one would imagine staying near a campus that is closed when many of their fellow students have gone home and the attractions of a university city are curtailed owing to public health measures, being held to a contract will not be an attractive prospect. That is where this new law comes to the fore.

The law now says a student (that is to say, a person studying at one of the educational institutions listed in the 2016 Act) who is in a student residential tenancy (i.e. not a PRT – a student with a PRT can get out quite quickly under that regime anyway) may “for a reason relating to coronavirus” bring to an end that tenancy at some point in the future no less than one week or four weeks away; those time periods are explained below.

What is meant by the phrase “for a reason relating to coronavirus” is not defined, although the phrase crops up regularly in both Coronavirus Acts. Later in the No.2 Act there is an example given in a different context: “for a reason relating to coronavirus (such as, but not limited to, inability to work in multiple or linked workplaces)”. It is difficult to imagine this coronavirus reason being construed narrowly if a student’s university/college is not physically operating, so basically a student tenant now has clear exit from such a tenancy.

The exit door is opened by a student simply serving a notice on her landlord in writing. That notice needs to state when she plans to leave, with that date being at least seven or twenty-eight days in the future depending on the student’s circumstances. The shorter seven-day notice to leave period applies for students who have already entered into a student residential tenancy agreement and have occupied the property at any time. The longer 28-day notice to leave period is for students who a) have already entered into a student residential tenancy but have not yet occupied the property, and b) have taken a new student residential tenancy since the law changed.

What should we make of these changes? In the short-term, it would seem quite a hardship on individual students, who may have lost income they would normally get through part-time work in places like bars, restaurants, sports stadia or cinemas, to continue to pay rent for a place in a city when (for some) they might be able to move back to the family home or maybe even move in with a partner during the ongoing coronavirus restrictions; in fact, it’s entirely possible such tenants flitted when it was safe to do (assuming it was safe) before the UK’s formal lockdown began a few months ago, given most Scottish universities stopped physical delivery of classes before actual restrictions began. Longer-term? Don’t get me wrong, it is difficult to think long-term about anything at the moment, but as time progresses the focus – rightly – will move to the owners of such properties who will understandably be quite keen to get some kind of income or use from them, perhaps by re-purposing some or all of what was student accommodation into another function. In non-coronavirus times I might have ventured an opinion on planning law here and whether it would be possible to do that in the face of a planning regime that says (it will be recalled) that the properties in question have to be used as student accommodation. I’ll stop myself in case I miss something, and indeed I’ll stop this blog post as it is already longer than I hoped it would be. Do tune in for the next edition of Scottish landlord and tenant law in a time of coronavirus at some uncertain point in the future.


The background in this blog post about student lets being outwith private rental sector regulation is modelled on Peter Robson’s annotations to the 2016 Act in W. Green’s Scottish Landlord and Tenant Legislation, a collection of annotated statutes that I am the general editor of.

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SULCN 2020 – a reflection on a reflective webinar

As explained in an earlier blog post, the annual event of the Scottish University Law Clinic Network (SULCN) moved online this year. I was chief Zoomer; I mean that as a Scottish joke, rather than a powerplay about how amazing my techie skills are, but for clarity I was indeed chairing the event on the day. Hat-tip to the University of Strathclyde for providing the apparatus for me to do that.

The event was not recorded. That said, a Twitter thread of the day can be found here. I have not much to add to those tweets here, save to note (again) my thanks to the three discussants – Eamon Keane, Hannah Cosgrove and Ryan Whelan – and the new President of the Law Society of Scotland, Amanda Millar, for her words on behalf of the Society and its continuing support of the network.

Thanks also to the students at Strathclyde Law Clinic, in particular Jamie Anderson and Kirstie Webb, for helping to publicise the event and looking after the Eventbrite page. They also participated in the discussion, as did Kate Laverty from the Clinic (explaining its ongoing work during the lockdown). For information, Kirstie’s experience of working from home during lockdown is detailed here.

I am going to give the final words of this blog post to Rebecca Samaras of the University of Edinburgh and the Chair of SULCN. She was unable to participate in the webinar, but was able to get a message to Eamon for him to read out. I thought this would be a suitable way to finish this blog post and I have her permission to share those words. Here they are.

Last night I found an email from Hannah Cosgrove, Eamon Keane and Ryan Whelan. It was dated December 2011. It was a proposal for a Scotland-wide law clinic group to be formed and asking if Edinburgh FLAC would be interested in discussing the proposal further.

The SULCN was formally launched the following year along with, at that time, UWS and its membership has grown year on year.

When I received that first email from our student founders, I was (and still am) full of admiration for their passion and drive to want to connect our law clinics for the reasons you will have heard today.

All I can say on behalf of everyone connected with SULCN is thank you Hannah, thank you, Eamon and thank you, Ryan. But now, it is up to you our current and future students to drive their vision forward and with all that you have heard today in mind, get involved. Get involved with your clinics, get involved with your universities and get involved with your communities. You are the future of the legal profession and you have the ability to inform the changes needed to ensure that the rule of law, something we are all committed to, is ensured.

Finally, some thank yous are definitely in order. First, to Strathclyde Law Clinic, especially, Jamie, Kirstie and Kate for pulling this session together so quickly and so well. It just shows what is achievable when you really want to do something.

Second, thanks also to Malcolm who, like me and Donald Nicolson were lucky to be involved with these tremendous students (as they were in 2012) from the start, for being our excellent technological expert today and for bringing SULCN into the virtual age!

Finally, thanks to all of you for registering and showing interest in all that we, your law clinics and your profession are doing. We hope you have enjoyed hearing from everyone today and they have incentivised you to go further and get involved. This is your Network.

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Scottish University Law Clinic Network Webinar 2020 – 27 May at Strathclyde (sort of)

The ninth annual event of the Scottish University Law Clinic Network (SULCN) will take place online on Wednesday 27 May 2020.

Details of and registration for the free event can be found on this Eventbrite page.

Thanks to the student volunteers at Strathclyde Law Clinic, particularly Jamie Anderson and Kirstie Webb, and to Kate Laverty at the Clinic for their roles in pulling this event together. Hat-tip also to Rebecca Samaras, the current Chair of SULCN, who will be online at the webinar and able to field any questions about the network that might arise.  Thanks also to the University of Strathclyde for hosting the event, or rather signing up for the Zoom infrastructure to allow the event to take place. Finally, thanks to Eamon Keane, Hannah Cosgrove and Ryan Whelan for volunteering to participate in this event, or at least not complaining too vociferously when I volunteered them for this event.

SULCN

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Strathclyde Non-Law Review

In these locked down times, it seems more important than ever to try to stay in touch with people. For those involved in higher education, as a bare minimum you want to keep classes and, where relevant, assessments rolling. I think the team at Strathclyde Law School and the wider uni have managed to just about do that. Props to all the support and IT staff who have played a part in this process, and thanks to the students for their forbearance and adaptability throughout.

Higher education is not just about teaching and exams though. It is also about something more, such as being part of a community, and having an ethos. With that in mind, my colleague Michael Randall has assumed an unofficial role of chief morale officer for the Law School. As part of this he instigated a virtual dissertation hand-in ceremony for our final year students (Twitter thread here; other platforms are also available). Another key strand of this is the online Strathclyde Non-Law Review. On its homepage, it is described as…

…a place where staff and students share their reviews and recommendations of books, films, TV shows, music and podcasts for others, to try and find something new to discover

I’ve offered a couple of posts. The first of these was a re-hash of an earlier piece by me on perfect songs, so there is nothing new there for the hardcore basedrones fans. My more recent post is about fitba; more specifically, the Sunderland ‘Til I Die docuseries.

The Strathclyde Non-Law Review is, of course, mainly aimed at Strathclyders, but you don’t need to log-in to access it or anything like that. As such, if anyone is seeking a displacement activity, you can now read something by me about a displacement activity, which I myself wrote as a displacement activity. You can also lose yourself in Professor Kenneth Norrie’s garden, an activity I highly recommend.

Strathclyde Non-Law Review

 

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Land Registration in Scotland and Coronavirus

The COVID-19 pandemic and the unprecedented in living memory UK public health measures that have followed in its wake have caused ripples in a variety of regulatory areas. I have already blogged about two such areas, namely landlord and tenant law (in the private rental sector) and access to land. If I was so inclined, I could say yet more about those areas: for landlord and tenant law, I could scrutinise the reform to the commercial letting sector (see paragraph 6 of Schedule 7 of the Coronavirus (Scotland) Act 2020 and one firm’s analysis of this) and the possible reform of the amnesty for tenant improvements in the agricultural sector; for outdoor access, I could highlight that the situation has been further developed by way of a useful statement by the Scottish Government on what responsible access means in the current situation and acknowledge that statement has the backing of a wide range of interest groups. It is time to move on to another topic though. This blog post is about land registration.

How to become an owner of land: registration

As everyone who has studied Scots property law knows (I hope), title to land in Scotland is predicated on registration of relevant paperwork in a public register. This means that the person who is the owner is able to substantiate that status through documents that other people can check. I mentioned “paperwork” there, and a certain emphasis might have been put on the first five letters of paperwork…“. I will come back to that. On the general principle though, should you wish to become owner of a parcel of land and you do not register yourself as owner of that land by lodging a document called a disposition with Registers of Scotland, you will not become the owner of that land. This has been the law for a few years, but it is now embodied in section 50 of the Land Registration etc. (Scotland) Act 2012.

Some of you may recall land registration was a hot topic on this blog a few years ago, when it was discussed in the context of souvenir plots. That was an idiosyncratic legal issue which led to a “debate” that all got a bit out of hand, although it does serve to illustrate that no registration means no real right of ownership. “Real right” in this context has a specific meaning, namely a right that the world at large has to recognise and respect; real rights can be contrasted with “personal rights” that exist between individuals (such as a debt). Generally speaking, a personal right can be created without the same publicity requirements as a real right requires. To acquire ownership of land in Scotland, the publicity that is needed is registration. That registration gives the right of ownership “real” effect. As a reminder, the issue in that context was a specific bit of Scots law that said teeny plots of land with no practical utility cannot be registered; no registration, no real right.

In more standard land transactions – so buying an actual dwellinghouse rather than a square foot of land – there will be a process when the land is marketed, an offer (or offers) will be made by a prospective buyer (or prospective buyers), then the seller and the (successful) buyer will conclude a contract for the sale of that land. In Scotland this contractual stage is called “concluding missives”. Title to the land does not transfer at this stage, and money does not normally change hands. The parties will agree a mutually suitable date of entry, and it is on this day that money will change hands, in exchange for a disposition. Even at this stage – and perhaps surprisingly – the buyer does not become the owner. This can be explained and rationalised somewhat by thinking about the position of third parties – they would not know about this private arrangement before some kind of publicity is effected. It does seem to put the buyer in a dangerous position though – you are not in law the owner, even though you have paid the price. What Scottish land law does to protect a buyer though is provide a device called the “advance notice“. This gives the buyer 35 days of priority to allow them more than a fair crack of the whip to register their disposition and become owner, restricting the potential pitfall of a devious seller re-selling the property to anyone else.

The transition from the (old) Sasine Register to the (new) Land Register

One other bit of background might be useful at this stage. In 1979 Scotland legislated for a new register of interests in land, called the Land Register. The introduction of the Land Register did not change the need to register a land transaction as a necessary step to make that arrangement “real”. The new Land Register was itself reformed in 2012. It is not necessary to go into all the details of that introduction and subsequent reform here, but essentially the main thrust for the creation of the Land Register was to introduce a modern, map-based register backed by a “state guarantee” regarding the information that was on the register in many circumstances. The Land Register has incrementally been replacing the older register that served as a repository of deeds relating to land from the 17th century onwards, that older register being known as the General Register of Sasines.

The incremental nature of the introduction of the new Land Register means land information in the Sasine Register did not immediately flip to the newer register. Rather, it happened on the next eligible dealing that affected a plot of land.

A dealing with a property that has not yet migrated to the new register from the old register (such as a sale, the grant of a lease over twenty years in duration, or the grant of a security right) will trigger registration in the new register. The transition to this new Land Register continues on an ongoing basis. The 2018/19 Registers of Scotland Annual Report (published September 2019) showed that 34% of Scotland’s land area and 67% of its “title units” (~1.8 million) were on the new Land Register. (The smaller percentage as relates to land area is a result of bigger, rural estates tending not to churn as much as smaller urban properties.) On either of those measures, there is still a fair amount of Scotland that is yet to migrate to the new Land Register. There is a target that migration to the new register will be complete by 2024. This 2024 target has seemed a bit optimistic for a little while now, and with COVID-19 it suddenly seems very optimistic. That is a matter for another piece. For present purposes though, all that needs to be noted is that the moment when a non-Land Registered property migrates to the new register – a so-called “first registration” – necessitates a bit more in the way of legwork done by the team at Registers of Scotland, especially in terms of capturing the boundaries of the property on the Ordnance Survey map.

COVID-19 and Land Registration

That’s enough property law theory and stuff for now. How does this relate to COVID-19?

See those public health measures I mentioned above, and the whole social distancing that ensued? In simplistic terms, the public health measures played havoc with the processes that Registers of Scotland had been following before the music stopped. This presented a problem. Remember: no registration, no real right.

Now, some changes relating to registered property in Scotland can be effected electronically – notably digital discharges of obsolete security rights (i.e. mortgages that have been paid off). This is a relatively easy process to capture without screeds of documentation: it can only operate in relation to a landholding that is already on the Land Register and a related ownership interest that is already embodied in the register, so removing a security right is a simple process. Presumably “DDS” can be effected by those “WFH” without much gnashing off teeth, or certainly no more gnashing of teeth than other work”places” throughout the UK are facing as they move to working from home.

It has been envisaged that other transactions relating to land might be captured electronically as well. For better or for worse, the processes for those transactions have not fully developed. Also, where a particular piece of land is either a) migrating from the old register to the new register, or b) a transfer of a part of property that is already on the Land Register, more care and attention is needed to effect that transaction; that is to say, you cannot simply replace the old owner’s name with the new owner’s name on an existing title sheet, you need to create a new title sheet for this new title unit.

When Registers of Scotland closed its doors on 24 March 2020, as was first highlighted to me via this tweet by the journalist and writer Gabriella Bennett, people were scrabbling for a solution that might allow transactions to be finalised and allow purchasers a pathway to becoming the legal owner of land. Those transactions that were (through no fault of the buyer or the seller) just a little bit more complicated (owing to the dealing not involving an existing title unit) were a particular issue. A flavour of this can be seen in the Twitter brainstorming I had with some other legal academics on 24 March following on from that tweet, and you can also see some reaction from Scottish Legal News and a comprehensive (and updated as the situation unravelled) post at The Time Blawg.

The Time Blawg post has a flavour of just how exasperated people felt about how this situation came to pass. I am not here to add to the pile-on but, with due respect to the team at Registers of Scotland who were no doubt caught by an unprecedented situation, some of the exasperation seems understandable. The Law Society of Scotland – the professional body for Scottish solicitors – was worried that its members could be caught up in the crossfire, and its initial advice was basically to tell solicitors not to “settle” any transactions. More developed guidance was made available by the Law Society of Scotland on 26 March (one commenter on my earlier Coronavirus blog post on a different issue was not enamoured with that guidance). All of this and more is explained in an excellent piece for the Scottish Parliament Information Centre. I suppose the one thing that might be added to that SPICe Spotlight piece is that in a domestic setting a solicitor often acts for the buyer and the buyer’s mortgage lender, meaning that solicitors and the Law Society of Scotland would have been worried about a two pronged attack if it was impossible to establish either ownership or a security right.

The SPICe Spotlight piece also shines a light on one potential workaround, namely extending an advance notice to try to give a wider time period of protection. The Time Blawg details an instance of that happening. Such a workaround though was very much trying to make the best of a bad situation (as was my own suggestion on Twitter of trying to fall back on the dubious protection of a trust clause whereby the seller would declare that the property was being held in trust for the buyer until ownership was transferred, these trust clauses being dubious for reasons highlighted by Scott Wortley).

Moving on from this world of workarounds, we now have some legislation on the matter. This is found in the hyper-miscellaneous schedule at the very end of the Coronavirus (Scotland) Act 2020. The land registration provisions are nestled between reforms to planning permissions and the Anatomy Act 1984.

The first set of reforms – spanning paragraphs 11-14 – provide for electronic delivery of a copy of a deed rather than the original itself as part of the registration process. This reform is made by way of (temporary) amendment to Section 21 of the 2012 Act. Incidentally, props to the team at legislation.gov.uk for capturing this change so quickly. The change means that a document can now be sent as an attachment to an email or by some other recognised electronic means.

The second set of reforms – found in paragraphs 15-19 – relate to advance notices. Any advance notice that was in play the day the music stopped – 24 March 2020 – will now subsist for an indefinite period. The notice will now subsist until ten days after the application record of the Land Register reopens, rather than stopping after the usual 35 days. Meanwhile, any new – digital – advance notice will now subsist for one of two periods, depending on which is most favourable to the person seeking the advance notice’s protection. Such a notice will last until the later of: a) the date the application record of the Land Register reopens, plus ten days; or b) the usual 35 days.

Conclusion?

What now? Registers of Scotland is continuing to try to make this new and temporary world work, and credit is due for that. Digital advance notices were the immediate priority, and the system for them went live on 7 April. This was one day later than was indicated in an earlier blog post by the Keeper, but I think we can forgive that. An update posted on this Bank Holiday Monday informs us that 20 digital submissions were made over the weekend.

One suspects this initial phase will be the most important hurdle to clear, given the inevitable slow down of the property market the lock down will entail (in line with recent Scottish Government guidance). At least we now have a situation that seems to cater for those who were caught in a logjam at what would be a stressful moment even in a non-pandemic world.

As principled as Scots land law is – and I will stick up for it till I am blue (and white) in the face – it would have been equal parts ridiculous and ludicrous to not allow people to become owners of land in a situation where everything was ready to roll and a socially distant flit was possible. We now have a solution though, it is just a case of trying to make it work. To end on an optimistic note, perhaps the systems that emerge from this crisis, not to mention a more tech-savvy profession, may even bring about a framework that is a little better for this upheaval when we can return to some kind of normality.

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Scottish Land Commission coverage of the Review of International Experience of Community, Communal and Municipal Ownership of Land

Today, the Scottish Land Commission published a blog post entitled “Is there such a thing as ‘normal’ community ownership?“, penned by its James MacKessack-Leitch.

This blog post links to a report (PDF) which sets out international approaches to communal and municipal land ownership. The report was driven forward by a team from Scotland’s Rural College (Rob Mc Morran, Jayne Glass, Jane Atterton, Sarah Jones and Eugenio Perez Certucha), who were joined by Annie McKee (from the James Hutton Institute), Ting Xu (University of Sheffield) and me.

As is my style with these blog [sign]posts, I will let that Report speak for itself. This post simply serves as a flag to the resource. I hope it is useful in its own right, and also for the Commission in terms of its further work in this area.

ScotLandCom International Community Snip

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Scottish Evictions and the Coronavirus (Scotland) Bill

The Coronavirus (Scotland) Bill was published today. It is available on the Scottish Parliament website here (PDF here).

Section 2 – the first substantive provision of the bill (with section 1 doing the microbiological needful and defining what is meant by “coronavirus”) – deals with “Eviction from dwelling-houses”, providing that “Schedule 1 contains temporary modifications to the law in relation to the eviction of private sector tenants and social tenants from dwelling-houses.

Given the focus on private sector residential lets in particular in recent days (as explained in my earlier post for the Strathclyde Law Blog), it is not a surprise this is front and centre. The provision (coupled with Schedule 1) also extends to the social sector. This post will concentrate on the private sector.

Schedule 1 sets out modifications for the three private letting regimes that still exist in Scotland, the governing regimes being: the very rare Rent (Scotland) Act 1984 (there have been no new tenancies under this since 1 January 1989); the relatively rare Housing (Scotland) Act 1988 (there have been no new assured or short assured tenancies since 30 November 2017); and the now dominant private residential tenancy. PRTs have been the sole private letting vehicle since 1 December 2017, and accordingly form the main focus of this post.

PRTs are governed by the Private Housing (Tenancies) (Scotland) Act 2016. The Coronavirus Bill modifies section 51 of this legislation, such that it removes any chance for the First-tier Tribunal for Scotland (Housing and Property Chamber) (the FTT) to evict someone on a mandatory basis.

As noted in my earlier post, for a landlord to recover possession from a tenant legally the landlord must have an order from the FTT. The FTT will only make an order if the landlord establishes the existence of one or more of eighteen possible eviction grounds. To explain further, in non-COVID-19 times there are two levels of private rented sector eviction ground: a mandatory eviction ground, which the FTT must grant if it is made out by the landlord; and a discretionary eviction ground, which the FTT may grant if it is made out, if the FTT thinks it is reasonable to do so.

The Coronavirus Bill will make all evictions that would have been mandatory (for example, owing to criminal conduct by the tenant, or the landlord wishing to sell or refurbish the property) subject to a reasonableness test. What was once shrouded in imperative language is now cloaked in discretion.

Of course, the FTT is not sitting at the moment, which means neither tenants nor landlords can get to it for any matters, be they eviction-related or otherwise, but when it sits again these rules will be relevant for that which comes before it.

Returning to the Coronavirus Bill, another thing it will do is extend the period for “notices to leave” in most circumstances, this period being something that a landlord must normally allow to run before raising proceedings at the FTT to recover possession. Subject to the FTT waiving compliance with this period in exceptional circumstances, a landlord would ordinarily need to wait 84 days or, in some specific situations, a shorter period of 28 days.

There are now three possible periods a landlord must wait out: 28 days; three months; or six months.

Whilst there is theoretically a short period of 28 days, it is now pretty much oot the windae. The only previously turbo ground that has been spared any particular change is the ground about the tenant not occupying the property, with this still needing 28 days. In fact, this ground has actually been facilitated, by saying that the period is 28 days in ALL circumstances, whereas in non-COVID-19 times you would only be able to access this shorter period in the first six months of a tenant’s occupation. Given the circumstances of the outbreak, this has to make sense, as a tenant in these circumstances warrants no particular protection (and in fact is denying someone else what could be a socially isolated home).

The grounds that could previously be dealt with in a shorter period now must wait for an extended time period. For information, in non-COVID-19 times these shorter period grounds were: 1. tenant in rent arrears for three or more consecutive months; 2. tenant in breach of a non-rent obligation; 3. tenant has a relevant conviction; 4. tenant has engaged in relevant anti-social behaviour; or 5. tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour.

Please note that it is not actually the case that these previously short period grounds have simply migrated to the new intermediate time period. Instead, that three month period only applies in relation to seven grounds, namely: 1. the landlord or 2. a member of the landlord’s family intends to live in the let property; 3. the tenant has a relevant conviction; 4. the tenant has engaged in relevant anti-social behaviour; 5. the tenant associates in the let property with a person who has a relevant conviction or has engaged in relevant anti-social behaviour; 6. the landlord is not registered by the relevant local authority as a private landlord; or 7. the let property or associated living accommodation is in multiple occupation and not appropriately licensed.

Anything else needs six months. Accordingly, a tenant in rent arrears or in breach of another obligation of the lease should be afforded six months before being evicted. For information, it can be noted that the underlying rent arrears ground for eviction is still that “the tenant has been in rent arrears for three or more consecutive months”, it is just that the landlord has to wait six months to get this before the FTT (when it is sitting).

That deals with PRTs. Similar changes are made in relation to assured tenancies and protected tenancies under the 1988 Act and 1984 Act respectively. At this point, I should really tip my hat the various draftspeople who have slogged away at this. There was a heck of a lot to get through just in relation to the private rented sector, and they have addressed so much more than that. Quite an effort, really.

Here’s a thought though, and it represents something that was said to me in response to my last blog post which can essentially be boiled down as follows: won’t somebody think of the landlords?

I suspect many readers of this post won’t feel instant sympathy for landlords, but – as Lord Hope reminded us in his judgment in Salvesen v Riddell – landlords have rights too. There will be some landlords who could find themselves in a sticky situation if the mortgage holidays that secured lenders have been talking about do not fully emerge. Furthermore, existing rules about the enforcement of standard securities (i.e. mortgages, in terms of the Conveyancing and Feudal Reform (Scotland) Act 1970) do afford some protection to residential debtors (owing to reforms made by the Home Owner and Debtor Protection (Scotland) Act 2010), but these do not extend to non-resident landlords. Rapacious landlords might be in the line of sights of some people, but it might be that secured lenders also need to be considered. This is definitely something to monitor.

Moving away from the rented sector but staying in the housing market, as noted there are no changes to the protections of residents who could be facing mortgage debt issues (save of course the strange new protection of civil justice grinding to a halt). There are however some changes in relation to bankruptcy legislation that might help home owners who are faced with non-mortgage-related debt enforcement action.

What else does the Coronavirus Bill do? An awful lot indeed. I see it proposes something not at all controversial about jury trials. Hmm.

I’ll conclude with a much more controversial point: in a Scots law context I tend to spell “dwellinghouse” as a compound word, but the Coronavirus Bill uses a hyphen. Crazy times indeed.

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Responsible access to the outdoors in Scotland in a time of crisis

There are so many important things happening in the country right now. I am not for a moment going to pretend that the Scottish right of responsible access to land is anywhere near even the middle of any rankings that might exist in terms of what is important for pandemic suppression (or whatever stage we are at) and wider questions of civil order and civil liberties. Having switched my degree studies from biology, chemistry and maths to law back in the mists of time, I can but rue the fact my change of focus leaves me blogging about something a bit more peripheral than very real microbiological concerns or modelling about that. So here’s a blog post about public access to land, as I furiously try to make my specialisms useful to the current situation.

Of course (he said striving for relevance), public health is not just about minimising the risk of people catching and spreading COVID-19. Naturally, that is paramount at the moment, but wider societal issues emerge. For example, people need somewhere to live, hence why evictions are being curtailed in the private rented sector (see this earlier blog post), and bankruptcy proceedings that might leave people homeless are similarly hamstrung. The right to a home is recognised in some international human rights instruments and the UN Special Rapporteur on the Right to Housing has pushed for a global ban on evictions. I suppose the right to housing could be viewed as slightly below immediate pandemic action in a crude hierarchy of current priorities; i.e. not quite the immediate priority, but still blooming important.

Further down the hierarchy comes an entitlement for people to enjoy the outdoors. Being able to get out and about is still important in these crazy times. Hear me out. If people emerge from their new world of home working, home dining and generally avoiding people to the effect that they have flattened the coronavirus curve but not flattened their bellies, that will be a new problem. A trip outside for exercise is accordingly something that the UK and Scottish Government has allowed to continue, as things stand.

The initial advice was for one bit of outdoor exercise a day, alone or with people from your household. Exercise is also something that gets a specific mention in the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020. (My focus is on the Scottish regulations only – the other home nations have different legislation for this crazy situation, and for information the permission of outdoor exercise also exists outwith Scotland.) This means that someone who would otherwise be committing an offence (the pertinent transgression for present purposes being the flabbergasting in any other times offence of leaving the place where you are living) has a defence in terms of regulation 8(4). A number of reasonable excuses are offered, in a comprehensive but actually non-exhaustive list: the drafting of regulation 8(5) is careful to say “a reasonable excuse includes…” rather than “a reasonable excuse is…”. The drafting specifically includes “to take exercise, either alone or with other members of their household”. Incidentally, in the regulations this is not limited to one occurrence (albeit one exercise activity continues to be stressed in Scottish Government advice). One can only imagine the evidential difficulties of trying to prosecute someone for a second jog (albeit it seems there really are clypes out there who maybe don’t like their neighbours at the best of times who are seeking to, eh, help the police), but I digress. For completeness, leaving your home is allowed for various other reasons, such as getting necessary supplies, going to a key job, or going to a scaled-down funeral.

An aside: the last of those examples was the first bit of legislation that really made me go “oh” in a long, long time. You can only go to a friend’s funeral if there is no member of the deceased’s household or close family present at the funeral, such that in those circumstances it would be appropriate for someone outside those categories of household and close family to be there to give a respectful farewell. This situation is serious, folks, if you had not already noticed.

The approach in the Coronavirus regulations is aimed at restricting what people do rather than restricting any particular geographical area. It does not repeal any existing rights to use land, such as a public right of way or the right of responsible access. It can accordingly be noted that a trip to work, a shop or perhaps even to the blood donation centre could follow the route of a public right of way for some or all of the way. The rest of this post will gloss over public rights of way, and I’ll explain the interaction of the existing Scottish rules for public access to the outdoors in a moment. Just as a reminder though, the Scottish right to roam is found in Part 1 of the Land Reform (Scotland) Act 2003. This is explained and augmented by the Scottish Outdoor Access Code, a document drafted by Scottish Natural Heritage and approved by the Scottish Parliament. The 2003 Act provides that people have a right to cross land and be on land for certain purposes (including recreation) provided the land is not excluded from access rights (as a result of the particular characteristics of land – I will refer to non-excluded land as “access land”) and that the person taking access is acting responsibly (i.e. not interfering with anyone else as a result of taking access). Access authorities (namely the relevant local authority or, if relevant, national park authority) play a role in making sure there is adequate provision for local access, such as by having a core path network for their area (core paths being guaranteed access land, save in extreme circumstances), and by ensuring any access land is not restricted without justification.

A key point to pin down is the concept of responsible access. I’ve already noted that, in normal circumstances, you can be pretty sure access is responsible when you are not interfering with the rights of anyone else, be they land owner, occupier, another access taker, or whatever. There is more though. Certain activities can never be responsible: driving a motorised vehicle, for example (save in the case of mobility-aiding vehicles that are properly in use). Such activities are on the section 9 banned list.

That’s not the end of the story though. Access can only be responsible if it is lawful, per section 2(3) of the 2003 Act.

Turning now to the Coronavirus regulations, no mention is made of the 2003 Act, but it gets caught in the wake. It might be useful to explain exactly how this might be, and why access rights do in fact continue notwithstanding any lockdown, albeit in a highly curtailed form.

In short, the emergency legislation does not stop any land where access rights can be utilised from being access land. No new land is expressly exempted as an excluded category of land. No new land falls within a periodic exemption: it is not like foot and mouth or any other animal disease, in terms of section 7(1) of the 2003 Act, such that core paths can be switched off; nor is it like a time-limited suspension in terms of section 11 of the 2003 Act (such suspension being at the behest of a land owner or access authority, for specific purposes). And it’s not like access being disapplied by the the Land Reform (Scotland) Act 2003 (Directions for the Purposes of Defence or National Security) Order 2003, where some security or strategic requirements necessitate that specific land is excluded from access rights.

What is it that stops public access then? The general criminal law. The new Coronavirus regulations function just like any public order offence, say aggravated trespass or mobbing. The land might be accessible, but as soon as you commit a criminal offence, you are not responsible.

The Coronavirus regulations say it is an offence to leave the place where you are living without a reasonable excuse. Exercise is permitted. Exercise is accordingly fine, and this can be done – responsibly and at a social distance – on any access land.

Before anyone asks, driving or riding a motorbike to a place to exercise is arguably not itself exercise. That is another story though; ask Derbyshire Police. For information, Scottish Natural Heritage’s guidance about getting out and about is available here. It asks people to “keep it local” and postpone outdoor trips that involve longer travel arrangements. For what it’s worth, that guidance seems to be in line with the reasonable excuses that are specifically provided for in Coronavirus regulations.

Leaving the home specifically to drive to a place to exercise does not fall snugly within any of the provided reasonable excuses. (Cycling to such a place would be fine, as it itself is exercise and pedal-powered access is catered for in the Access Code.) You might be able to make a bit more of a case for motorised travel to an exercise spot if you manage to incorporate a stop on your journey to or from another place where you were entitled to be. One suspects a police officer could take a dim view of this if you happened to do this at a local beauty spot at the same time as other people were doing the same, but perhaps a sympathetic view could be taken of someone who suddenly struggles to find a spot suitable for dog walking that is accessible from their front door in our new, locked down world. (General guidance about dogs can be found here.) Also, remember the list of reasonable excuses is not exhaustive, so splitting hairs about someone getting to an exercise spot then engaging in that exercise whilst maintaining social distancing throughout might not be the best use of police resources in the days to come.

*What of the land managers? Given access land retains that status, land managers are under a duty to respect access rights in relation to that land. That duty remains notwithstanding the Coronavirus regulations, it’s just that – obviously – the footfall in hard to reach places will necessarily be lower than it might otherwise have been. For completeness, it can also be noted that land managers are allowed to restrict access to land for legitimate land management reasons, in terms of section 14 of the 2003 Act. If a land manager is genuinely unable to manage land for fear of access takers being somehow unable to socially distance themselves from those undertaking management activities, then steps can absolutely be taken to regulate and in extreme cases temporarily prevent access. There may also be occupiers of outdoor facilities who are no longer able to staff those resources, and as such those occupiers will be keen to scale back operations and introduce clear signage about any risks at now unmanned sites to avoid any issues of occupiers’ liability. If, however, the management activities can continue alongside suitable responsible and socially distant access then the usual rules of the game apply such that spurious closures, impediments or disincentives can be challenged by the relevant access authority.

To try to bring this to some sort of a conclusion, Scotland will still be available to enjoy when this is all over. So will Scotland’s access rights. In the meantime, hopefully everyone keeps the heid, such that access takers don’t push their luck too much and, conversely, land owners and managers don’t use the situation as a means to restrict what should be perfectly legitimate, local access to land.

Thanks for reading. Now feel free to enjoy some responsible outdoor exercise. Then wash your hands.

* UPDATE on the evening of 28 March: I added what is now the third from last paragraph after some discussions with a friend, to – I hope – cover all bases. And on 29 March, I tweaked some wording to make the post completely consistent with the legislation, as the offence is leaving the place where you are living, rather than simply being out of your home.

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Landlord and tenant law in a time of crisis – new post for the Strathclyde Law Blog

This is one of my blog (sign)posts, which simply exists to point people somewhere else. In this case, I am pointing people to my first post for the Strathclyde Law Blog.

The Strathclyde Law Blog was recently established by the Law School at the University of Strathclyde. It now has six posts, so do feel free to have a nosey if and when you click through to my own post. (Without wishing to belittle the other posts, I would draw your attention to Professor Norrie’s post on mixed sex civil partnerships, which is an absolute pearler.) Do keep an eye on the School’s website and Twitter feed for further content.

As for my post, it is a pandemic inspired analysis of eviction in the Scottish private rented sector. There are moves – rightly – to limit eviction at a time when the income streams of many in society will be or already have been affected. Not only that, the relevant tribunal that deals with evictions has shut, meaning those seeking recovery of possession of rented property for any reason will not be able to get the order that is necessary for that process to be legal.

You can read more over at the Strathclyde Law Blog.

Blog snip

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New book – Land Reform in Scotland: History, Law and Policy by Combe, Glass and Tindley

Edinburgh University Press recently published an edited collection about land reform in Scotland. I was one of the editors of this book, Land Reform in Scotland: History, Law and Policy, alongside a dream team of co-editors, Jayne Glass and Annie Tindley.

As might be apparent from the book’s subtitle, it has three constituent elements. It looks at land law reform from historical, legal and geography/policy perspectives. Owing to its interdisciplinary nature, the various editors took the lead in relation to our respective areas of expertise (Annie for history, me for law, Jayne for policy). We hope this works to bring the subject to life for readers from all disciplines, or indeed no discipline.

Details of the book can be found on EUP’s website at https://edinburghuniversitypress.com/book-land-reform-in-scotland.html.

My Twitter thread about the book and its contents can be found here. I don’t intend to rehash that thread fully here, but I will offer a few quick points about the book just for those who can’t be gassed with Twitter, and I will also take a moment to log more detailed thanks to a number of institutions.

The book begins with a short introduction by Jayne, Annie and me. Then there is the history section, comprising five chapters of Scottish insight, and also comparative Irish insight, bearing in mind Irish land reform also happened within the (then) UK. There are chapters on: the strange survival of the Scottish land question; land, labour and capital in early modern Scotland; agrarian radicalism; enlightenment and improvement; and conceptions of landownership. The law section begins with a chapter that straddles the law/history division, considering the history of land transfer in Scotland, before looking at more contemporary land reforms in general, then through the lenses of property theory, human rights and sustainable development. Specific chapters then look at landlord and tenant law in residential, agricultural and crofting (Highlands and Islands) contexts. Lastly, the policy section considers the planning regime, a bit more on crofting law and a recent reform to it, the implications of the size of estates on sustainable management, and Scottish and Norwegian agricultural models (and what those places can learn from each other).

In terms of thank yous, and further to the acknowledgements that feature in the book, The Centre for Mountain Studies at Perth College UHI, the Carnegie Trust for the Universities of Scotland and the Centre for Scotland’s Land Futures provided funding for a workshop activity that underpinned the writing of the book and gave a subvention to EUP to allow for its publication in a somewhat expanded form. Big up to them. Thanks also to the School of Law at the University of Aberdeen, for its support of an event that allowed some of the themes in this book to be aired, and also for contributing to the subvention to the publisher. This financial support continued even though I handed in my notice and made the switcheroo to the University of Strathclyde: I really do need to put my thanks to Professor Greg Gordon (the Head of the School of Law at the University of Aberdeen) on the record for not throwing his toys out of the pram, or indeed at me, and still making this contribution.

Finally, thanks to the team at Edinburgh University Press for all their efforts, and to the reviewer who read the book in its entirety to ensure it flowed. I am not sure if I am allowed to publicly say who that was. If you are reading this, Mr or Ms Reviewer, please take note of this public thanks nevertheless. Oh, and thanks of course to the people who wrote the chapters. Yeah, that helped – without you there definitely wouldn’t have been a nice, shiny book.

For the super keen land reform fans, there may be a few events relating to the book in the coming months, subject of course to any cancellation owing to much more important events in the world happening. I’ll try to keep you posted of these on my blog and/or via social media in due course.

EUP Book

The bonnie front cover photo, featuring Kilchurn Castle, some houses, a byre, and a pylon (at Loch Awe).

 

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