Consultation on a New Tenancy for the Private Sector: Analysis of Consultation Responses

2 Improving Tenants' Security of Tenure

2.1 The consultation paper covers four themes relating to improving tenants' security of tenure: a no-fault ground for regaining possession; tenancy roll-over arrangements; length of tenancy; and notices to quit.

No-fault ground for regaining possession

2.2 Under the current Short Assured Tenancy (SAT) arrangements, a landlord may reclaim possession of the property and does not need to give a reason except that the fixed term is ending. The Review Group's report suggested that the new tenancy system should contain 'a modernised and simplified right of possession...'.

2.3 The Scottish Government's proposal is that there should not be 'no-fault' grounds for regaining possession, meaning that a landlord would no longer be able to ask the tenant to leave the property simply because the tenancy agreement had reached its end date. Instead, the landlord would have to use one of the proposed new grounds for recovering possession listed in paragraph 52 of the consultation paper and covered at Question 5 in this report.

Question 1: Do you agree that the no-fault ground for a landlord to repossess their property should be excluded from the new tenancy system?

2.4 Question 1 asked respondents if they agreed that the no-fault ground should be excluded from the new tenancy system. Responses to Question 1 by respondent type are set out in Table 2 below. At 99% of all respondents, the number responding to this question was the highest for the consultation as a whole.

2.5 The clear majority of those who answered this question (81%) agreed that a no-fault ground should be excluded from the new tenancy system. Those agreeing included those who supported Campaign 3 and the majority of advice, campaign group, local authority, tenant and union respondents. However, the majority of non-campaign respondents (79%), including the majority of industry body, landlord, letting agent, legal and individual respondents, did not agree with the exclusion of a no-fault ground. Those supporting Campaigns 1 and 2 also disagreed.

2.6 A total of 491 non-campaign respondents made a further comment at this question and the text from all 3 campaigns also included a relevant comment. The issue was also discussed with focus group participants.

Table 2: Question 1 - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	8	1	-	9
Campaign Body or Group	10	-	-	10
Industry Body	1	11	2	14
Landlord	8	39	2	49
Legal Body or Firm	-	8	1	9
Lettings Agent and/or Property Management	6	45	3	54
Local Authority	18	3	-	21
Tenant and/or Resident Group	10	1	-	11
Union or Political Party	7	1	-	8
Other	2	5	-	7
Total Organisations	(70)	(114)	(8)	(192)
Individuals	63	274	11	348
Total (excl. campaign responses)	(133)	(388)	(19)	(540)
Percentage (excl. campaign responses)	18%	79%	3%	100%
Campaigns	1908	74	-	1982
TOTAL	2041	462	19	2522
Percentage of those answering	81%	18%	1%	100%

2.7 Those who agreed that the no-fault ground should be excluded raised a broad range of issues in support of their position, with some noting that they considered the exclusion of the no-fault ground as essential to the reform of the tenancy regime. A broad range of respondents also noted the increased role the PRS plays in providing long-term housing for many households, including households containing children and/or which have experienced homelessness; this was sometimes connected with the need to provide greater security of tenure to these types of household in particular.

2.8 However, some who did support the exclusion of a no-fault ground (including a small number of campaign body or advice service respondents), also voiced concerns about the overall package of proposals and the extent to which they would actually provide proper and proportionate levels of security of tenure. Comments and concerns tended to focus on the proposed new grounds for repossession which are discussed further within the analysis at Question 5.

2.9 Potential benefits identified as flowing from the exclusion of a no-fault ground included that longer-term tenancies will allow people to put down roots and will support the development of stable, balanced communities. Some focus group participants raised a similar issue, and those with children tended to be particularly keen on an approach that allowed them to remain in their current home for as long as possible. Small numbers of focus group participants were also amongst those noting that frequent moves are not only costly but can also have a negative impact on the health and well-being of those involved.

2.10 A common view was that the potential for a tenancy to be ended for no reason leaves some tenants unable or reluctant to assert their rights because of concerns that their lease will be terminated. Advice service, campaign body, local authority and tenant group respondents were amongst those raising this issue. Most focus group participants also reported being aware at least of the possibility that a landlord might terminate a tenancy if they reported all repairs and insisted on them being carried out in a timely manner. In addition to the tenancy being terminated, there were particular concerns that a landlord or letting agent might either withhold or give a poor reference if they asserted their rights, and that this would jeopardise their ability to secure accommodation in the future. This was a particular concern for those operating in high-cost markets (such as Edinburgh or Aberdeen) and also for those in receipt of Local Housing Allowance.

2.11 Some respondents, amongst them a small number of campaign body or advice service respondents, reported that some landlords do use the no-fault route as a means to bring tenancies to an end for what the respondent identified as unfair or vindictive reasons. There was a corresponding hope that if this were no longer possible, tenants would assert their rights and that empowered tenants could drive a culture of continuous improvement in the sector. Some focus group participants (around 1 in 3), felt they would be more inclined to assert their rights if a landlord could not end their tenancy without giving a reason.

2.12 Some of those who agreed with the exclusion of the no-fault ground (including a number of local authority respondents), also noted the importance of ensuring that the grounds which a landlord could use to bring a tenancy to an end are fit for purpose and, for example, cover all reasonable business-related eventualities. Other respondents noted the potential difficulties that landlords could face if they needed to bring a tenancy to an end, for example if the tenant was behaving badly. These types of issues were also raised frequently by those respondents who favoured the inclusion of a no-fault ground in the new private tenancy regime.

2.13 As noted above, the majority of non-campaign respondents supported the inclusion of a no-fault ground with many questioning the fundamental premise underpinning the proposal, namely that tenants want or need extra security. In particular, a number of respondents, including many individual respondents and some industry body, landlord and letting agent respondents, suggested that good landlords do not end tenancies for no reason. A number of others (again including individual, landlord and letting agent respondents), suggested that the current system generally works well and is well understood and that the Scottish Government is proposing a major change to the whole sector to address a problem that only affects a very small proportion of the market - namely 'rogue landlords' carrying out 'retaliatory evictions'.

2.14 Those opposing the exclusion of the no-fault ground raised a number of concerns about the likely impact of following through with the proposal. Frequent amongst these, and particularly likely to be referenced by industry body, letting agent, landlord and individual respondents, was how the exclusion of a no-fault ground will impact on the health of the PRS market and the extent to which the Government's strategic aim of enabling growth and investment in the sector will be undermined. It was suggested that the exclusion of a no-fault ground would act as a barrier to future investment or result in current investment being withdrawn.

2.15 An industry body respondent noted that a survey of their own members suggested that around 1 in 2 would be less likely to invest further and around 1 in 3 would leave the sector entirely. Another industry body also noted that members have reported that they would be re-assessing their property portfolios, with some saying they will look to sell properties. It was suggested that this may have a particular impact on the affordable rental market - for example if currently affordable rural lets are converted into holiday lets. In terms of further investment, it was suggested that the uncertainty created by the consultation process has already led some institutional investors to decide against committing funds at this time.

2.16 Respondents suggested a number of reasons why the exclusion of a no-fault ground would lead to disinvestment or lack of future investment. These included that investors dislike uncertainty and are risk-averse, and would see the exclusion of a no-fault ground as increasing their exposure to risk.

2.17 Respondents who suggested they might disinvest (including both some landlord and individual respondents), were amongst those who referred to people's right to manage their private property as they saw fit and to take possession of it if they so wished, without having to justify that decision. Included amongst these were some who noted that their rental properties provide a vital source of current or future income and that a 'high-risk' investment strategy is not an option for them. The connection between risk and the exclusion of the no-fault ground was sometimes explained as landlords lacking confidence in being able to regain possession of their property through any route other than the no-fault end of the tenancy.

2.18 On a connected point, a number of letting agent and landlord respondents (either group respondents or individual respondents who could be identified as landlords), pointed out that being able to bring a tenancy to an end using the no-fault route is important to a landlord's ability to manage their business efficiently and at a reasonable cost. There were particular concerns that the exclusion of a no-fault ground could result in landlords becoming involved in long and costly proceedings to regain possession of their property. Those raising this concern sometimes gave examples of the difficulties and delays that a landlord or letting agent can experience when trying to gain possession under the current system.

2.19 In terms of regaining possession, some respondents noted their concern that the proposed grounds for repossession (as at paragraphs 47-52 of the consultation paper and discussed further at Question 5 below), are unlikely to be workable as currently drafted. There were also concerns that the PRS Tribunal system could be overwhelmed by a high number of referrals or that there is no evidence to show that the First-tier PRS Tribunal will be quicker, cheaper and more effective than the current system. By extension, it was suggested that the Tribunal system does not give landlords confidence that a system which excludes the no-fault ground would be workable.

2.20 Other concerns about regaining possession other than through a no-fault route included that:

• If a landlord has to gather evidence and give a reason that relates to a tenant's behaviour this could cause conflict or tension where it was perhaps not otherwise present. Landlord or individual respondents were most likely to raise this concern.
• Even in cases of breach of tenancy, most landlords evict using the 'no-fault' route because of the difficulties of proving a breach; antisocial behaviour is one of the most difficult breaches to prove with neighbours often reluctant to report the problem to the proper authorities for fear of retaliatory abuse. Communities could be subjected to antisocial behaviour if landlords are unable to evict tenants until the necessary proofs are in place. Letting agent and individual respondents were most likely to raise this concern.
• If tenants are evicted for a reason which relates to their behaviour, as opposed to their tenancy simply being terminated at its end, this could make it difficult for them to find a new tenancy. This concern was also raised by some focus group participants.

2.21 As noted above, some respondents suggested that supply within the affordable rental market could decrease if landlords withdraw from that part of the market in response to the exclusion of the no-fault ground. Equally, it was suggested that landlords may become more selective in the tenants they choose, with any change having the biggest impact on categories of tenant that landlords perceive to be more risky, including those on lower incomes, single parents, those on benefits and young people who are entering the PRS for the first time without a proven track record. Industry body and letting agent respondents were amongst those likely to raise this prospect. A small number of focus group participants also highlighted this possibility, although their concerns generally focused on the approach being taken by letting agents rather than the landlords themselves. A further concern raised by a small number of focus group participants and respondents was that landlords might take action to remove 'riskier' tenants before the new tenancy regime came into force.

2.22 Specific types of rental properties or markets which respondents suggested could be adversely affected by the exclusion of a no-fault ground included the following:

• Rentals for the student market. It was suggested, including by some landlords or letting agents who identified themselves as operating in this section of the market, that the proposal could lead to significant difficulties for both landlords and students. In particular, it was noted that the market relies on being able to offer tenancies that have start and end dates that are aligned to academic years etc. It was also noted that many students want to be able to 'pre-book' their accommodation but that landlords would not be able to offer these guarantees if they did not have a mechanism which ensured they would have possession of the property.
• Accommodation that is or could be required as staff accommodation. This was sometimes raised with particular reference to accommodation for agricultural workers and accommodation in rural areas, but was also identified as an issue for property owned and/or managed by religious bodies or academic institutions and used to accommodate staff.
• Other types of accommodation identified as requiring particular attention were Houses of Multiple Occupation (HMOs), short-term lets relating to specific events (such as the Edinburgh Festival), properties rented through private sector leasing schemes and supported accommodation for potentially very vulnerable tenants.

Summary - Question 1

The clear majority of respondents (81%) agreed that a no-fault ground should be excluded from the new tenancy system. However, the majority of non-campaign respondents (79%) disagreed.

Those agreeing that the no-fault ground should be excluded included respondents to the Living Rent campaign and a number of local authority, campaign body, tenant group and union respondents.

Key issues raised by these respondents included the extent to which the PRS now provides long-term housing for many households, including households containing children. There was a suggestion that longer-term tenancies will allow people to put down roots and will support the development of stable, balanced communities. There was also a common view that the potential for a tenancy to be ended for no reason leaves some tenants unable or reluctant to assert their rights.

However, the majority of non-campaign respondents supported the inclusion of a no-fault ground. Individual, letting agent, landlord and industry body respondents tended to take this view. These respondents raised a number of concerns about the likely impact on the health of the PRS market and the potential for future or current investment to be lost. It was suggested that investors dislike uncertainty, are risk-averse and lack confidence in being able to regain possession other than through the no-fault route. It was also suggested that losing this mechanism for managing their business efficiently and at a reasonable cost could lead some landlords to become more selective in the tenants they are willing to rent to.

Tenancy roll-over arrangements

2.23 The current system enables tenancies to roll over on a month-to-month basis, after the end of the initial lease period, if stated in the tenancy agreement. The Scottish Government's view is that one month's notice offers tenants little time to make other arrangements and that, if a tenancy has been working well, it seems reasonable to offer a tenant the extra security of at least another six month tenancy.

2.24 The proposal is that the new system will not enable tenancies to roll over on a monthly basis or indeed any other basis that offers a shorter duration than the current tenancy agreement. This means that at the end of the initial lease period, if no Notice to Quit has been issued, either automatic renewal will apply or a new contractual tenancy will be needed.

2.25 However, a small number of legal respondents noted that the proposal is based on the part-assumption that the tenant is given a period of only one month to make alternative accommodation arrangements. They suggested this is not necessarily correct as the tenant will have received two months' notice of termination of tenancy.

Question 2: Do you agree that the ability to roll over tenancies on a monthly basis should be excluded from the new tenancy system?

2.26 Question 2 asked respondents if they agreed that the ability to roll over tenancies on a monthly basis should be excluded from the new tenancy system. Responses by respondent type are set out in Table 3 below.

2.27 The clear majority of all respondents (79%) and non-campaign respondents (76%) did not agree that the monthly roll-over should be excluded. Groups in which the majority disagreed were industry bodies, landlords, lettings agents, others and individual respondents. Those supporting Campaigns 1 and 2 also disagreed. However, a majority of advice, campaign, local authority and tenant respondents did agree. Union or political party respondents were evenly divided.

2.28 A total of 483 non-campaign respondents went on to make an additional comment, and the text from Campaigns 1 and 2 also included a relevant comment. This issue was also discussed with focus group participants.

2.29 A small number of comments referred to the relationship between the exclusion of a no-fault ground and the exclusion of a monthly roll-over option. It was also suggested that removing the monthly roll-over would be consistent with the removal of the no-fault recovery route. Others saw no advantage or need to remove the roll-over if the no-fault ground is excluded, as security of tenure would not be affected.

Table 3: Question 2 - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	4	3	2	9
Campaign Body or Group	6	3	-	9
Industry Body	1	14	-	14
Landlord	9	40	-	49
Legal Body or Firm	-	7	1	9
Lettings Agent and/or Property Management	2	52	-	54
Local Authority	11	7	2	20
Tenant and/or Resident Group	7	4	-	11
Union or Political Party	3	3	1	7
Other	-	5	2	7
Total Organisations	(43)	(138)	(8)	(189)
Individuals	56	276	21	353
Total (excl. campaign responses)	(99)	(414)	(29)	(542)
Percentage (excl. campaign responses)	18%	76%	5%	100%
Campaigns	-	74	-	74
TOTAL	99	488	29	616
Percentage of those answering	16%	79%	5%	100%

2.30 Those who agreed with the exclusion of the monthly roll-over often referred to the need to boost security of tenure and ensure that tenants have sufficient notice that the tenancy will be coming to an end. Some local authority, advice service and campaign body respondents were amongst those raising this issue. In particular, it was noted that a month is insufficient time to find a new property in many housing markets - including highly pressured urban markets and in rural areas where supply will be limited. This was very much the view of the majority of focus group participants; those living in Aberdeen and Edinburgh reported particular difficulties in accessing a new tenancy because of competition from other renters. Those living in rural areas, and particularly those with school age children, noted the need to stay within a local community which may have few if any tenancies coming up for rent.

2.31 Many respondents (principally those who disagreed with the exclusion of the roll-over provision, but also a small number who agreed with its exclusion or had not reached a firm view), pointed to the advantages that come with the monthly roll-over approach. In particular, a number of industry body, letting agent, landlord and individual respondents suggested that, along with landlords, many tenants like the flexibility offered by the monthly roll-over arrangements and may not necessarily wish to renew the lease for the same length of time as the original tenancy agreement. A small number of letting agent respondents reported that, in their experience, it is tenants rather than landlords who ask for a tenancy that rolls over month by month.

2.32 Many referred to the type of tenant who might need or prefer the monthly roll-over approach or to the type of circumstances under which the monthly roll-over is useful. Examples given included:

• Those looking to move in the near future - for example those moving into owner occupation or the social rented sector and needing to honour a specific date of entry. Lettings agent respondents were particularly likely to highlight this issue.
• Those with short-term or transient work arrangements who may need or want to move regularly and at relatively short notice. A small number of focus group participants were in this position and all said they would have concerns about an approach which tied them in for longer fixed periods.

2.33 A particular concern was that tenants who needed or wanted to leave a tenancy 'mid-term' could find themselves liable for an early exit fee or the rent to cover the remainder of the tenancy period; this could mean they would either suffer a potentially significant financial loss or might be unable to move at all. An associated concern was that the number of abandonments (and associated problems for landlords) could increase; this was a particular concern amongst individual, letting agent and industry body respondents. More generally, there was a suggestion that mid-tenancy administration costs could increase, either because agents would charge each time the tenancy is renewed or because of the time taken for the landlord to create and get the lease signed again.

2.34 Other comments on the potential impact of excluding the monthly roll-over included that, as with the exclusion of the no-fault ground, this could deter investment into the sector, with particular concerns about the likely impact on the student market. It was also suggested that 'potential landlords', such as people who are moving away for a fixed period for employment, may be reluctant to rent out their property if they would have to commit to extensions of a minimum of 6 months. Similarly, there was a view that an approach which creates second or subsequent tenancies in line with the initial tenancy length will discourage landlords from offering longer leases; rather, it was suggested, landlords will stick to the minimum period possible. Industry body and letting agent respondents were most likely to raise this range of issues.

2.35 Suggested alternatives or additions to the proposed approach (suggested by those agreeing, disagreeing or of no fixed view), included:

• The tenant (but not the landlord) should be offered the choice of second and subsequent tenancies of the same length as the first tenancy or the month to month roll-over.
• Tenancies could roll over for less than 6 months, but for longer than under the current system - for example, in 2 or 3 month blocks.

Summary - Question 2

The clear majority of respondents (79%) did not agree that the monthly roll-over should be excluded. Groups in which the majority disagreed were industry bodies, landlords, lettings agents, others and individual respondents.

Many respondents suggested that both landlords and tenants like the flexibility offered by the arrangement. Many referred to the type of tenant who might need or prefer the monthly roll-over approach (such as those who with short term working arrangements) or to the circumstances under which the monthly roll-over can be useful (such as those looking to buy a home in the near future). A particular concern was that such tenants could find themselves liable for the rent to cover the remainder of the tenancy period and/or that the number of abandonments (and associated problems for landlords) could increase.

Although in the minority overall, a majority of advice, campaign, local authority and tenant respondents did agree that the monthly roll over should not form part of the new tenancy regime. They tended to refer to the need to boost security of tenure and ensure that tenants have sufficient notice that the tenancy will be coming to an end. In particular, it was noted that a month is insufficient time to find a new property in many housing markets.

Length of tenancy

2.36 The proposal is that all future lets would have a minimum duration of six months. However, the consultation paper notes that some tenants, such as travelling or seasonal workers, may want a tenancy of less than six months; they would be able to request a shorter tenancy period from the landlord, who would be able to decide whether to accept the request. However, a landlord would not be able to offer a tenancy shorter than six months unless the tenant specifically requests it.

Question 3a: Do you agree that the new type of tenancy should have a minimum duration of six months?

2.37 Question 3a asked respondents if they agreed that the new type of tenancy should have a minimum duration of 6 months. Responses by respondent type are set out in Table 4 below.

2.38 The clear majority of respondents who answered this question (76%) agreed that tenancies should be for a minimum of 6 months, as did the majority of non-campaign respondents (73%). The majority of advice, campaign body, industry body, landlord, letting agent, local authority, and tenant group, other and individual respondents agreed with the proposal. Union respondents were evenly divided while legal body or firm respondents were the only type of respondent in which the majority disagreed.

Table 4: Question 3a - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	8	1	-	9
Campaign Body or Group	6	3	-	9
Industry Body	13	1	-	14
Landlord	34	14	1	49
Legal Body or Firm	3	5	1	9
Lettings Agent and/or Property Management	41	11	2	54
Local Authority	19	1	-	20
Tenant and/or Resident Group	9	2	-	11
Union or Political Party	3	3	1	7
Other	4	3	-	7
Total Organisations	(140)	(44)	(5)	(189)
Individuals	252	75	22	349
Total (excl. campaign responses)	(392)	(119)	(27)	(538)
Percentage (excl. campaign responses)	73%	22%	5%	100%
Campaigns	74	-	-	74
TOTAL	466	119	27	612
Percentage of those answering	76%	19%	4%	100%

2.39 A total of 426 non-campaign respondents went on to make an additional comment, and the text from Campaigns 1 and 2 also included a relevant comment. This issue was also discussed with focus group participants.

2.40 Those who agreed with the 6 month minimum tended to make relatively limited further comments, which often suggested the approach seemed: reasonable; reflects current practice; continues with an approach which is valued for its flexibility; is well-understood by tenants, landlords and agents; and allows both parties time to decide if the tenancy is working out well. This was also very much the view of the focus group participants. Industry body, landlord and letting agent respondents were amongst those who noted that the majority of landlords want tenancies of no less than 6 months to ensure that the time and money spent arranging the tenancy are worthwhile and lead to reasonable rental income.

2.41 A small number of respondents noted the benefits of allowing flexibility, including that longer tenancies remain an option which could be agreed between landlord and tenant. These respondents also suggested that they would like to see longer term tenancies being used more frequently, including the suggestion that a 'good practice code' approach could be set out that would encourage the adoption of longer leases, whilst retaining the potentially attractive option of shorter term leases.

2.42 A small group of respondents, including some local authorities, also explicitly agreed with or welcomed the option for shorter tenancies under certain circumstances. In addition to the work-related examples referenced in the consultation paper, respondents (including a small number who had disagreed with the proposal), suggested other circumstances in which shorter minimum terms could be required and appropriate would be:

• For student lets, and particularly purpose-built student accommodation.
• In relation to properties that are otherwise used as holiday lets but are being let out-of-season. It was also noted that when operating as holiday lets properties will require to be excluded from the provisions.

2.43 Other points raised by those who supported the 6 month minimum included that care will have to be taken to ensure that the ability to choose a shorter period is not exploited and misused as a loophole by landlords or their agents. A small number of focus group participants also raised this as a possibility, particularly if someone was desperate for accommodation and felt they had few if any other options available to them.

2.44 A small number of other respondents (principally those who had disagreed at Question 3a), suggested that the minimum term could or should be longer, or that there should be no minimum term. Alternative proposals included:

• 12 month minimum tenancies.
• Indefinite tenancies with clearly defined notice period arrangements, possibly in line with those for assured and protected tenancies.

2.45 Finally, a small number of respondents, including some letting agent and legal firm respondents, suggested that there should be no minimum term; rather they took the view that shorter terms should simply be an option and that both landlord and tenant should be able to suggest a shorter lease term. One legal body respondent suggested that a minimum term would impose upon the freedom of contract which each party to the proposed tenancy should have and the terms should remain open for negotiation between the parties.

Summary - Question 3a

The clear majority of respondents agreed that tenancies should be for a minimum of 6 months (76%).

Those who agreed with the 6 month minimum tended to make relatively limited further comments, which often suggested the approach seemed: reasonable; continues with an approach which is valued for its flexibility; and is well-understood by tenants, landlords and agents.

A small number of other respondents suggested that the minimum term could or should be longer, or that there should be no minimum term.

Question 3b: Do you agree that the tenancy should have no maximum period?

2.46 Question 3b asked respondents if they agreed that the new type of tenancy should have no maximum period. Responses by respondent type are set out in Table 5 below.

2.47 The clear majority of all respondents who answered this question (69%) and of non-campaign respondents (70%) agreed that tenancies should have no maximum period. A majority of all types of respondent agreed with the proposal, although some landlord, letting agent and individual respondents disagreed as did those supporting Campaign 1.

Table 5: Question 3b - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	8	-	1	9
Campaign Body or Group	7	-	1	8
Industry Body	12	1	-	13
Landlord	34	9	5	48
Legal Body or Firm	9	-	-	9
Lettings Agent and/or Property Management	37	9	8	54
Local Authority	20	-		20
Tenant and/or Resident Group	10	-	1	11
Union or Political Party	5	-	2	7
Other	6	1	-	7
Total Organisations	(148)	(20)	(18)	(186)
Individuals	226	87	37	350
Total (excl. campaign responses)	(374)	(107)	(55)	(536)
Percentage (excl. campaign responses)	70%	20%	10%	100%
Campaigns	45	29	-	74
TOTAL	419	136	55	610
Percentage of those answering	69%	22%	9%	100%

2.48 A total of 390 non-campaign respondents went on to make an additional comment, and the text from Campaigns 1 and 2 also included a relevant comment. This issue was also discussed with focus group participants.

2.49 It should be noted that the further comments suggest that the proposal and question have been interpreted broadly in one of two ways. Some respondents have understood the proposal to be that there would be no prescribed maximum tenancy length - in other words that there would be no 'cap' on the length of tenancies. However, some respondents have interpreted the question as asking whether a tenancy should have no fixed term, in other words whether tenancies should be indefinite. Given this, the subsequent commentary simply sets out the range of issues raised^[4].

2.50 Some respondents suggested that an approach whereby landlords and tenants can agree to a longer tenancy if they both so choose works well for both landlords and tenants. Letting agent, industry body and individual respondents were particularly likely to highlight this as a strength of the current system.

2.51 Other respondents, including many individual, landlord and local authority respondents simply stated that they saw no reason or need for a maximum tenancy period (although, as noted above, it was not always clear exactly what was meant by this). Sometimes respondents qualified their comment with the need for reasonable notice provisions.

2.52 Some respondents were of the view that the need for the length of a tenancy to be defined would depend on whether there is a no-fault ground. The small but diverse group of respondents raising this point tended to suggest that tenancies would need to be of a fixed term if a no-fault ground is excluded. A contrasting view (generally expressed by respondents who had supported the exclusion of a no-fault ground and including some campaign body respondents), was that tenancies should not have a fixed term and that Scotland should adopt the more open-ended lease periods common in some other European countries.

2.53 Suggested advantages of this open-ended approach included giving tenants a greater sense of security and greater sense of 'belonging' to their neighbourhood or community. Tenant and resident group respondents were particularly likely to have highlighted this issue. It was also suggested that this approach offers advantages to landlords in terms of consistent income streams.

2.54 Those proposing that tenancies should have no fixed terms expressed varying views on whether possible exceptions should be allowed. Issues raised included:

• A lease must be for a fixed term in order to be a contractual agreement.
• Any action which substantially limits the landlord's discretion may discourage further investment into the sector. It was also noted that many mortgage companies will not allow long fixed tenancies.
• Student accommodation may or does require fixed tenancy terms in order to establish availability for the next academic period.
• It will be important to avoid tenants being required to enter into much longer contracts than they might want or being tied in to unreasonably long notice periods.

Summary - Question 3b

The clear majority of respondents (69%) agreed that tenancies should have no maximum period. However, it appeared that the proposal and question were interpreted broadly in one of two ways. Some respondents have understood the proposal to be that there would be no prescribed maximum tenancy length - in other words that there would be no 'cap' on the length of tenancies. However, some respondents have interpreted the question as asking whether a tenancy should have no fixed term, in other words whether tenancies should be indefinite.

Some respondents suggested that an approach whereby landlords and tenants can agree to a longer tenancy if they both so choose works well for both landlords and tenants. Other respondents, simply stated that they saw no reason or need for a maximum tenancy period.

Some respondents were of the view that the need for the length of a tenancy to be defined would depend on whether there is a no-fault ground. A contrasting view was that tenancies should not have a fixed term and that Scotland should adopt the more open-ended lease periods common in some other European countries.

Question 3c: Do you agree that a tenant should be able to request a shorter tenancy?

2.55 Question 3c asked respondents if they agreed that a tenant should be able to request a shorter tenancy. Responses by respondent type are set out in Table 6 below.

2.56 The clear majority of all respondents who answered this question (74%) and of non-campaign respondents (75%) agreed that a tenant should be able to request a shorter tenancy. There were no types of respondent within which the majority did not agree with this proposal.

2.57 A total of 452 written respondents went on to make an additional comment, and the text from Campaigns 1 and 2 also included a relevant comment. This issue was also discussed with focus group participants.

2.58 Many of those who supported this proposal, including a number of individual, landlord and letting agent respondents, simply confirmed that the landlord would not have to agree to a shorter tenancy and in some cases made their support conditional on that being the case. As at earlier questions, a substantial number of respondents also noted the advantages of building flexibility into the new system, not least because this is what many tenants want and need.

Table 6: Question 3c - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	9	-	-	9
Campaign Body or Group	5	1	2	8
Industry Body	12	-	-	12
Landlord	36	9	4	49
Legal Body or Firm	9	1	-	10
Lettings Agent and/or Property Management	38	15	-	53
Local Authority	20	-	-	20
Tenant and/or Resident Group	9	2	-	11
Union or Political Party	6	1	-	7
Other	7	-	-	7
Total Organisations	(151)	(29)	(6)	(186)
Individuals	255	82	15	352
Total (excl. campaign responses)	(406)	(111)	(21)	(538)
Percentage (excl. campaign responses)	75%	21%	4%	100%
Campaigns	45	29	-	74
TOTAL	451	140	21	612
Percentage of those answering	74%	23%	3%	100%

2.59 Again, respondents noted the types of tenants who may particularly benefit by being able to request a shorter tenancy, including gypsy/travellers, seasonal workers, those on short-term or probationary work contracts and students. A small number of focus group participants recalled occasions on which they would have found a shorter tenancy to have been helpful and most could envisage future circumstances in which it might offer a useful option.

2.60 However, a significant concern (raised by both those agreeing and disagreeing with the proposal), was that tenants could be 'forced' into accepting shorter tenancies. This was a particular concern amongst local authority and advice service respondents. It was suggested that appropriate safeguards will be required to ensure that the tenant's request is genuine and that the procedure is not used to evade a new minimum length for renewed tenancies. There were particular concerns that shorter tenancies could be misused to operate like a probationary tenancy and that vulnerable tenants would be particularly open to such an abuse.

2.61 The majority of the group respondents who did not agree and went on to comment were either landlords or letting agents. Their principle concern, echoed by a number of the individual respondents, was that shorter tenancies result in increased costs and are not financially viable for landlords. A small number of those who had agreed with the proposal also noted the cost implications for landlords and in some cases noted that rental charges may need to be higher as a result.

2.62 Some respondents (including a small number who had agreed with the proposal), thought that 'the same rules' should apply to both tenant and landlord, in other words that if a landlord cannot offer a shorter tenancy a tenant should not be able to request one.

Summary - Question 3c

The clear majority of respondents (74%) agreed that a tenant should be able to request a shorter tenancy.

Many respondents simply confirmed that the landlord would not have to agree. As at earlier questions, a substantial number of respondents also noted the advantages of building flexibility into the new system. However, there was a concern that tenants could be 'forced' into accepting shorter tenancies, with appropriate safeguards required to ensure this does not happen.

Notice to Quit - from landlords to tenants

2.63 Currently if a tenancy lasts for more than four months, the minimum notice period is 40 days; and if the tenancy lasts for four months or less, the notice period is at least 28 days.

2.64 The proposal is to link the notice period for tenants with how long the tenant has been living in the property using the following sliding scale:

• Less than six months in the property = 28 days' notice (four weeks).
• Six months or more, but less than two years in the property = 56 days' notice (eight weeks).
• Two years or more, but less than five years in the property = 84 days' notice (12 weeks).
• Five years or more in the property = 112 days' notice (16 weeks).

Question 4a: Do you agree that the notice period should be linked to how long the tenant has lived in the property?

2.65 Question 4a asked respondents if they agreed that the notice period should be linked to how long the tenant has lived in the property. Responses by respondent type are set out in Table 7 below.

2.66 The majority of all respondents who answered this question (60%) and of non-campaign respondents (59%) agreed with linking notice periods to the time the tenant has lived in the property. A majority of all types of respondent were in agreement, although a significant minority of campaign body, landlord, letting agent and individual respondents disagreed with the proposal.

Table 7: Question 4a - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	8	-	1	9
Campaign Body or Group	7	3	-	10
Industry Body	11	2	1	14
Landlord	30	19	-	49
Legal Body or Firm	6	1	2	9
Lettings Agent and/or Property Management	33	19	1	53
Local Authority	15	4	1	20
Tenant and/or Resident Group	9	2	-	11
Union or Political Party	6	1	-	7
Other	6	1	-	7
Total Organisations	(131)	(52)	(6)	(189)
Individuals	191	143	19	353
Total (excl. campaign responses)	(322)	(195)	(25)	(542)
Percentage (excl. campaign responses)	59%	36%	5%	100%
Campaigns	45	29	-	74
TOTAL	367	224	25	616
Percentage of those answering	60%	36%	4%	100%

2.67 A total of 446 non-campaign respondents went on to make an additional comment, and the text from Campaigns 1 and 2 also included a relevant comment. This issue was also discussed with focus group participants.

2.68 Those agreeing with the proposal often referred to it seeming appropriate, reasonable or fair; letting agent, local authority, industry body and individual respondents were particularly likely to make a comment of this type. Three industry body respondents were amongst those suggesting that the system should recognise those who have been resident for longer, not least because of the benefits to landlords of tenancies lasting for longer.

2.69 A number of respondents also noted that a longer tenancy suggests that the tenant may have established strong connections to the local area and in these circumstances it is likely that they would need longer to find alternative accommodation which meets their needs. This was very much the view of focus group participants and particularly those living in rural areas and/or with children. In particular, they pointed to the difficulties children can experience if they need to make frequent changes of school. The difficulty of re-arranging childcare was also highlighted.

2.70 However, some focus group participants were amongst those (including both those agreeing or disagreeing with the proposal), who suggested that, irrespective of circumstances, the 28 day notice period is too short; it was felt it gave insufficient time to make alternative arrangements, including finding the money necessary to fund a move.

2.71 Industry body and letting agent respondents were amongst the small number of respondents who raised questions about how the proposal would work in practice. These tended to focus on the definition of notice periods and, in particular, how 'month' should be interpreted. It was suggested that there will need to be clear guidance on the relevant periods for those serving the notices to avoid any confusion.

2.72 Other issues or concerns raised, including by those agreeing or disagreeing with the proposal, included that there could be issues with tenants with long notice periods abandoning or failing to pay the rent during that period. Where it suited both parties, a minimum notice period with clear rules regarding mutual renunciation was proposed.

2.73 The issues most frequently raised by those who disagreed with the proposal were that the approach would be complicated, confusing and less transparent or that it simply is not necessary or appropriate for landlords to need to give longer notice, or that the longer notice periods suggested are too long. Some of those making this point suggested that the (current) 2 month period is sufficient for a tenant to find a new property, or that the time taken to find a new property is not affected by how long a tenant has lived in their current home.

2.74 Other comments made included that:

• The proposal is inequitable and there should be equivalent notice periods for landlords and tenants. Those raising this issue included a small number of those agreeing with the proposal as well as many who did not. This specific issue of the notice tenants would give is discussed further under Question 9.
• Circumstances change and this proposal would remove the flexibility to respond to those changes including for tenants who wish to move quickly, or for landlords who need their property back within a manageable period. Landlords and individual respondents were most likely to raise this concern.

2.75 Finally, two campaign body respondents suggested that notice periods should be linked to the grounds for repossession and that where the grounds for repossession are not linked to the tenant's actions (essentially grounds 1-5), the landlord should give the tenant 16 weeks' notice. Where the grounds for repossession relate to the tenant's action (grounds 6, 7 and 8), they suggested the notice period should be 28 days. These issues are covered further under Question 5.

Summary - Question 4a

The majority of respondents (60%) agreed with linking notice periods to the time the tenant has lived in the property.

Those agreeing often referred to it seeming appropriate, reasonable or fair. A number of respondents also noted that a longer tenancy suggests that the tenant may have established strong connections to the local area and in these circumstances it is likely that they would need longer to find alternative accommodation which meets their needs.

However, some respondents suggested that, irrespective of circumstances, the 28 day notice period is too short; it was felt it gave insufficient time to make alternative arrangements, including finding the money necessary to fund a move. Other issues or concerns raised, including by those agreeing or disagreeing with the proposal, included that there could be issues with tenants with long notice periods abandoning or failing to pay the rent during that period.

The issues most frequently raised by those who disagreed with the proposal were that the approach would be complicated or that it simply is not necessary or appropriate for landlords to need to give longer notice.

Question 4b: Do you agree with the four proposed notice periods?

2.76 Question 4b asked respondents if they agreed with the four notice periods proposed. Responses by respondent type are set out in Table 8 below.

2.77 Respondents were relatively evenly divided on this issue, although a small majority of all respondents who answered this question (54%) and of non-campaign respondents (56%) disagreed with the notice periods proposed. The majority of campaign body, industry body, legal body, local authority, union and other respondents agreed with the proposal. However, the majority of individuals, advice services, landlords and letting agent respondents disagreed.

2.78 A total of 388 non-campaign respondents commented at this question, and the text from Campaigns 1 and 2 also included a relevant comment. This issue was also discussed at the focus groups.

2.79 Both those agreeing and disagreeing raised many of the same issues as already covered at Question 4a. More particularly, those who agreed sometimes referred to the proposal appearing fair and reasonable. Those who disagreed suggested the approach would be complicated and unfair.

Table 8: Question 4b - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	2	5	2	9
Campaign Body or Group	5	4	-	9
Industry Body	6	4	2	12
Landlord	16	28	3	47
Legal Body or Firm	5	2	1	8
Lettings Agent and/or Property Management	22	29	3	54
Local Authority	11	8	1	20
Tenant and/or Resident Group	8	2	-	10
Union or Political Party	5	2	-	7
Other	4	2	1	7
Total Organisations	(84)	(86)	(13)	(183)
Individuals	116	212	18	346
Total (excl. campaign responses)	(200)	(298)	(31)	(529)
Percentage (excl. campaign responses)	38%	56%	6%	100%
Campaigns	45	29	-	74
TOTAL	245	327	31	603
Percentage of those answering	41%	54%	5%	100%

2.80 Of those who disagreed with the notice periods, letting agent, landlord and individual respondents were most likely to suggest that the longer notice periods, and particularly the 16 week period, are excessive. A number of those raising this concern suggested that a 12 week notice period should be the maximum. Others suggested an 8 week maximum.

2.81 Focus group participants were relatively evenly divided on this issue; some were of the view that 12 weeks would be sufficient but others thought that 16 weeks would be better. There was also a suggestion that the time of year should be taken into account and that there are some periods (principally over the summer and Christmas and New Year holidays) when tenants need longer notice periods.

2.82 Alternatively (and as at Question 4a) some respondents (primarily advice service, campaign body or individual respondents), disagreed with the shortest notice period (of 28 days' for someone who had been in a property for less than six months). Those disagreeing with this part of the proposal also included many of the focus group participants. Various alternatives were suggested, including that the minimum notice period should be 40 days irrespective of how long the tenant had lived in the property.

Summary - Question 4b

Respondents were relatively evenly divided on the 4 notice periods proposed, although a small majority (54%) did agree with them. Both those agreeing and disagreeing raised many of the same issues as at the previous question, with those agreeing suggesting the proposal appeared fair and reasonable and those disagreeing suggesting the approach would be complicated and unfair.

There were particular concerns about the 16 week notice period being too long. Alternatively some respondents disagreed with the shortest notice period (of 28 days' for someone who had been in a property for less than six months).