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

3 Safeguards for Landlords, Lenders and Investors

3.1 The consultation paper notes the need for the new tenancy system to strike the right balance between the interests of landlords, lenders, tenants and investors. Six themes are covered: grounds for repossession; shorter Notice to Quit period in certain circumstances; pre-tenancy notices; notice of proceedings; Notice to Quit - from tenants to landlords; and a model tenancy agreement.

Grounds for repossession

3.2 There are currently 17 grounds under which a landlord can regain possession of their property; some grounds attract a mandatory court order and others a discretionary order^[5]. The proposal is for these to be replaced by 8 grounds, all of which would be mandatory. The proposed grounds are:

1. Landlord wants to sell.
2. Mortgage lender wants to sell because the landlord has broken the loan's conditions.
3. Landlord or family member wants to live in the property.
4. Refurbishment.
5. Change of use.
6. Tenant has failed to pay full rent over three months.
7. Tenant has displayed antisocial behaviour.
8. Tenant has otherwise broken their tenancy agreement.

3.3 In future all private rented sector civil cases will be heard by the PRS Tribunal not the sheriff courts. The PRS Tribunal will be part of the new First-tier Tribunal, created under the Tribunals (Scotland) Act 2014.

Question 5a: Do you agree that all the proposed repossession grounds should be mandatory?

3.4 Question 5a asked respondents if they agreed that all the proposed repossession grounds should be mandatory. Responses by respondent type are set out in Table 9 below.

3.5 The clear majority of all those who answered this question (78%) and of non-campaign respondents (75%) agreed that all the proposed repossession grounds should be mandatory. The majority of industry body, landlord, legal body, letting agent, local authority, tenant group, individual respondents and those supporting Campaigns 1 and 2 agreed. However, the clear majority of advice and campaign group respondents did not agree.

Table 9: Question 5a - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	1	8	-	9
Campaign Body or Group	1	8	-	9
Industry Body	8	2	2	12
Landlord	43	5	-	48
Legal Body or Firm	8	1	-	9
Lettings Agent and/or Property Management	45	7	2	54
Local Authority	12	6	1	19
Tenant and/or Resident Group	8	3	-	11
Union or Political Party	3	4	-	7
Other	7	-	-	7
Total Organisations	(136)	(44)	(5)	(185)
Individuals	261	52	29	342
Total (excl. campaign responses)	(397)	(96)	(34)	(527)
Percentage (excl. campaign responses)	75%	18%	6%	100%
Campaigns	74	-	-	74
TOTAL	471	96	34	601
Percentage of those answering	78%	16%	6%	100%

3.6 There was a strong correlation between views on the inclusion of a no-fault ground and views on whether the proposed grounds should be mandatory. Overall, those who favoured the inclusion of a no-fault ground tended to believe the grounds should be mandatory. Those who did not favour the inclusion of a no-fault ground also tended to disagree with the proposed 8 grounds being mandatory. However, the profile differed for local authority and tenant group respondents, with the majority in these groups both agreeing with the exclusion of a no-fault ground and that all the proposed grounds should be mandatory.

3.7 A total of 355 non-campaign respondents made a further comment at this question, and the text from Campaigns 1 and 2 also included a relevant comment. The question was also discussed at the focus groups.

3.8 Those who agreed that all the proposed grounds should be mandatory often focused their comments on the need for repossession grounds to be mandatory and 'watertight', particularly if they are the only route through which a landlord will be able to regain possession of their property. Many respondents, including letting agent, landlord and individual respondents, noted that they favoured simplification and the system being easy to understand for both landlords and tenants. This point was often connected to the need to make sure the grounds are clear and concise but that there is sufficient detail to ensure they are workable and robust. A number of respondents suggested that further detail is required or noted that the current consultation provides insufficient detail to allow them to make a judgment as to whether the proposals are workable. This issue was also raised by respondents who did not agree that the grounds should be mandatory or did not have a view.

3.9 Issues raised by those supporting the mandatory approach included:

• The Tribunal process will need to be sufficiently resourced to ensure that landlords can repossess their properties in a timely manner.
• The grounds could, but must not, become 'diluted' during the legislative process.

3.10 A small number of both those who agreed or disagreed at Question 5a identified certain grounds which they considered should be discretionary rather than mandatory. Advice service, campaign body, local authority and union and individual respondents were amongst those commenting on this issue. A case was made that some grounds being discretionary would be in the interest of both tenants and landlords; the suggestion was that it may be simpler for a landlord to prove on the balance of probabilities that they require possession of the property, rather than strictly adhering to the specific evidential requirements of a tightly defined mandatory ground for possession. From the tenant's perspective it was suggested that discretion would reduce the risk of an eviction order being granted for relatively minor technical breaches of the tenancy agreement.

3.11 Respondents were most likely to suggest that Ground 6 (Tenant has failed to pay full rent over three months), Ground 7 (Tenant has displayed antisocial behaviour), and Ground 8 (Tenant has otherwise broken their tenancy agreement), should be discretionary. A small number of respondents also questioned whether Ground 4 (Refurbishment), should be discretionary. This overall position was similar to that taken by most focus group respondents; they tended to the view that purely business-related grounds should be mandatory, with the possible exception of Ground 4, but that those relating to the tenant should be discretionary. Further analysis of respondents' views on the specific grounds is set out at Question 5b below.

3.12 Many of those who disagreed with all grounds being mandatory stated explicitly that no grounds should be mandatory. More widely, there was a view that making all grounds mandatory would represent a serious weakening of the rights of tenants in Scotland's private rented sector by removing the defence of 'reasonableness'. There were also concerns about eviction cases being dealt with by the First-tier PRS Tribunal rather than by the Sheriff Court. Advice service and campaign body respondents were most likely to voice these concerns.

Summary - Question 5a

The majority of respondents (78%) agreed that all the proposed repossession grounds should be mandatory, although the majority of advice and campaign group respondents did not agree.

Those who agreed that all the proposed grounds should be mandatory often focused their comments on the need for repossession grounds to be mandatory and 'watertight', particularly if they are the only route through which a landlord will be able to regain possession of their property.

In contrast, a small number of both those who agreed or disagreed identified certain grounds which they considered should be discretionary rather than mandatory. Respondents were most likely to suggest that Grounds 6, 7 and 8 should be discretionary. Many of those who disagreed with all grounds being mandatory stated explicitly that no grounds should be mandatory.

Question 5b: Do you agree with the proposed list of new repossession grounds?

3.13 Question 5b asked respondents if they agreed with the proposed list of repossession grounds. Responses by respondent type are set out in Table 10 below. This was also a question which was discussed at the tenant focus groups.

3.14 A small majority of all those who answered the question (56%) and half of non-campaign respondents (50%) agreed with the proposed new list of repossession grounds. Although most types of respondent were relatively evenly divided, the clear majority of local authority, tenant group and union respondents agreed, as did those supporting Campaigns 1 and 2.

3.15 A total of 412 non-campaign respondents made a further comment 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.

3.16 As reflected in the analysis below, some respondents made general points whilst others focused on specific grounds. The analysis covering specific grounds also captures some of the comments made at Question 5a (which were often cross-referenced within responses).

3.17 General comments made by those who agreed with the proposed grounds often referred to them being fair, reasonable, simple and straightforward, particularly compared to the current approach. This was also the view of the majority of focus group participants. However, a small number of those who supported the proposal did note that their support was based on the grounds being mandatory and/or suggested there should also be a no-fault ground.

Table 10: Question 5b - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	5	3	1	9
Campaign Body or Group	3	1	4	8
Industry Body	7	4	1	12
Landlord	22	23	3	48
Legal Body or Firm	4	4	1	9
Lettings Agent and/or Property Management	27	23	4	54
Local Authority	13	5	2	20
Tenant and/or Resident Group	10	1	-	11
Union or Political Party	5	-	1	6
Other	5	2	-	7
Total Organisations	(101)	(66)	(17)	(184)
Individuals	163	159	24	346
Total (excl. campaign responses)	(264)	(225)	(41)	(530)
Percentage (excl. campaign responses)	50%	42%	8%	100%
Campaigns	74	-	-	74
TOTAL	338	225	41	604
Percentage of those answering	56%	37%	7%	100%

3.18 A common theme, both amongst those agreeing, and disagreeing with the proposal, was the need for further information and detail. In particular, many respondents sought clarification as to the definitions of key terms being used (such as what is meant by a landlord's family, what is considered to be antisocial behaviour etc). Other respondents noted that it will be important to have clear information and guidance as how the processes associated with repossession will work, and particularly the supporting evidence that will be required. Some went on to call for involvement of key partners in developing definitions and processes, or for further consultation to be undertaken once these have been developed.

3.19 Other general concerns raised or comments made by those disagreeing with the proposals included the requirement for a no-fault ground or that the current system works well, or reasonably well, and no change is required. Individual respondents were most likely to raise this last point.

3.20 The other principal concern raised (as at Question 5a) was that the approach represents a serious weakening of the rights of tenants because of the proposal to make all grounds mandatory.

Ground 1: Landlord wants to sell the house

3.21 Around 40 respondents made a specific comment about Ground 1.

3.22 A small number, including some focus group participants, expressly stated that this should be a discretionary ground, with consideration given to proportionality and reasonableness; in particular, it was suggested that while landlords have obvious ownership rights, these have to be balanced against the tenants' rights to security of tenure. A small number of focus group participants were of the view that a landlord should only be able to sell because they were retiring or in the event of an unpredictable change in their circumstances; they did not think a landlord should be able to sell for purely financial and/or business reasons, such as because the property was worth more than they had paid for it.

3.23 Otherwise, comments tended to focus on at what stage in the process of a landlord wanting to sell this ground would apply, and how it would be evidenced that the landlord genuinely was seeking to sell the accommodation. Suggested examples given included the appointment of a solicitor to handle the sale or evidence that the property has been marketed at a reasonable price. A small number of respondents asked what penalties would be in place should landlords abuse this ground. The question as to whether the purchaser could immediately re-let the property was also raised.

3.24 Finally, a small number of respondents asked what would happen if:

• The landlord had a genuine change of mind or circumstances and no longer wished to sell.
• It was not possible to sell the property (as in no-one wished to buy) or a sale falls through.

Ground 2: Mortgage lender wants to sell because the landlord has broken the loan's conditions

3.25 Few respondents (around 20) commented specifically on Ground 2. As at Ground 1, many of the comments made focused on the timing of any repossession. Otherwise, respondents tended to focus on whether the mortgage lender should be required to step in directly as landlord or sell the property with a sitting tenant. For example, it was noted that in some other countries if a landlord sells a property, the tenants remain with the terms of their lease intact, and the new landlord must 'buy them out' by giving a financial incentive to leave.

Ground 3: Landlord or family member wants to live in the property

3.26 Around 45 respondents commented specifically on Ground 3. A small number of respondents suggested that this ground did not offer a strong enough reason for the need to repossess to be mandatory and that the circumstances of the tenant should be taken into account.

3.27 Many of the comments focused on the need for further information as to how this ground would be applied, and in particular how 'family member' would be defined. A suggestion was that it should include a spouse/civil partner, parents, siblings or children including step or half relatives and such relatives by marriage.

3.28 Other comments or suggestions included:

• That the landlord or family member must have occupied the property immediately prior to it being let. Some focus group participants took a similar view and felt that this ground should only apply if someone wanted to move (back) into a property which had been their family home rather than bought as an investment.
• The ground should be expanded to include employees or helpers. Landlord respondents were particularly likely to have highlighted this issue.
• How long would the landlord or family member need to live in the property for this ground not to have been misused?

Ground 4: Refurbishment

3.29 Around 55 respondents commented specifically on Ground 4 and there were particular concerns that this ground would be open to abuse.

3.30 Again, definitions were seen as key, with a number of respondents questioning how 'refurbishment' would be defined and the extent and type of work which would be included. Suggestions made included that the landlord should need to demonstrate that they require vacant possession in order to carry out the work.

3.31 Other suggestions relating to Ground 4 included:

• The landlord should be required to provide evidence that no reasonable alternative arrangements can be made with the tenant such as alternative housing for a period, partial use of the property, rent abatement etc.
• The previously sitting tenant should be given 'first refusal' when the newly refurbished property is available for rent. This suggestion was made by a small number of focus group participants.

Ground 5: Change of use

3.32 Around 30 respondents commented specifically on Ground 5, with issues raised being very similar to those in relation to Ground 4 (Refurbishment), namely what is meant by 'change of use'.

Ground 6: Tenant has failed to pay full rent over three months.

3.33 Around 210 respondents commented specifically on Ground 6. The majority of respondents raised one or both of two concerns. These were that:

• 3 months is too long for a landlord to wait. Those raising this concern sometimes also noted that the tenant would be at least 5-6 months in arrears before a possession order could be granted (assuming a wait of 1-2 months for a First-tier PRS Tribunal hearing) and that there is a delay beyond this before eviction takes place. This means that even in simple, quick cases there could be a full 7-8 months of arrears before repossession takes place. Industry body, landlord, letting agent and individual respondents were particularly likely to raise these concerns.
• The ground does not appear to, but should acknowledge the potential for persistent and significant failure to pay rent; those raising this concern sometimes suggested that unscrupulous tenants would 'play the system' by avoiding ever being 3 full months in arrears.

3.34 Alternative proposals included that:

• The landlord should be able to issue 14 days' notice after 1 full month of rent is in arrears.
• Further, if the arrears remain after the notice period has elapsed the landlord can begin tribunal proceedings. If at the point the tribunal hearing takes place the tenant is 3 months in arrears (or has at any point during the tenancy been 3 months in arrears) the Tribunal must award possession.
• 2 months full rent arrears would be more appropriate. This would mirror the current maximum of two months deposit.

3.35 However, other respondents, including a small number of advice service and campaign body respondents, suggested that Ground 6 would be in conflict with the Homelessness etc. (Scotland) Act 2003's requirement to provide a reasonableness defence for the current 3 months' arrears of rent (Ground 8, schedule 5, Housing (Scotland) Act 1988). A particular connection was made to arrears which resulted from delays or errors in the processing of Local Housing Allowance (LHA) or Universal Credit payments. This was also a clear concern for focus group participants; they were almost unanimously of the view that someone should be evicted if they had not paid their rent for 3 months, unless those arrears were connected with delays or mistakes concerning LHA. Some noted that they themselves would have been vulnerable in the past if this were not the case.

Ground 7: Tenant has displayed antisocial behaviour.

3.36 Around 55 respondents commented specifically on Ground 7, with issues of definition again being a primary concern. In particular, the term was seen as highly subjective, including by focus group participants. One suggestion was that any antisocial behaviour would need to be serious and ongoing to ensure that tenants did not lose their homes as a result of a single incident that may be trivial. The legal body respondent making this point suggested that if the definition of antisocial behaviour is to be the same as that currently stated in the 2001 Act, the threshold is low and would allow landlords to insist on eviction based on a relatively trivial incident.

3.37 Further, landlord respondents were amongst those noting that behaviour which may not cause any problems in an entirely self-contained tenancy can be profoundly disruptive in a complex or in shared accommodation. It was also suggested that antisocial behaviour is very difficult to prove and hence clear guidance would be needed as to the evidence required to secure an eviction.

3.38 A number of respondents, including some campaign body respondents, were strongly of the view that the ground should be discretionary, not least because of the possible circumstances that could lead to antisocial behaviour. Examples given included if the behaviour was a symptom of an illness or if it was actually a visitor who had behaved antisocially.

3.39 Finally, a small number of tenant group respondents were amongst those pointing to the importance of being able to evict swiftly because of the need to protect neighbours and the wider community.

Ground 8: Tenant has otherwise broken their tenancy agreement.

3.40 Around 50 respondents commented specifically on Ground 8. Many of those commenting noted or were concerned that this ground could result in tenants being evicted for relatively minor infringements. Advice service, campaign body and local authority respondents were particularly likely to have raised this concern. These concerns led some to conclude that the Tribunal might need to rule on the reasonableness of the case - in other words that the ground should be discretionary. It was also suggested that the ground should be limited to sufficiently serious breaches of a term of the model tenancy agreement or any other term which is reasonable in the circumstances of the case.

Summary - Question 5b

A small majority (56%) of respondents agreed with the proposed list of grounds for repossession.

General comments made by those who agreed with the proposed grounds often referred to them being fair, reasonable and straightforward. A common theme, both amongst those agreeing, and disagreeing with the proposal, was the need for further information and detail. Other general concerns raised or comments made by those disagreeing with the proposals included the requirement for a no-fault ground or that the current system works well, or reasonably well, and no change is required.

In terms of specific grounds, Ground 6 (Tenant has failed to pay full rent over three months) attracted the highest number of specific comments. The principle concerns were that 3 months is too long for a landlord to wait and that the ground does not appear to, but should acknowledge the potential for persistent and significant failure to pay rent.

Question 5c: Are there other repossession grounds we should include in the list?

3.41 Question 5c asked respondents if there are other repossession grounds which should be included. Responses by respondent type are set out in Table 11 below.

Table 11: Question 5c - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	1	6	1	8
Campaign Body or Group	3	2	3	8
Industry Body	11	1	-	12
Landlord	37	8	3	48
Legal Body or Firm	7	1	-	8
Lettings Agent and/or Property Management	38	6	8	52
Local Authority	9	8	3	20
Tenant and/or Resident Group	-	7	4	11
Union or Political Party	1	4	2	7
Other	3	1	3	7
Total Organisations	(110)	(44)	(27)	(181)
Individuals	163	72	92	327
Total (excl. campaign responses)	(273)	(116)	(119)	(508)
Percentage (excl. campaign responses)	54%	23%	23%	100%
Campaigns	74	-	-	74
TOTAL	347	116	119	582
Percentage of those answering	60%	20%	20%	100%

3.42 The majority of those who answered this question (60%) and of non-campaign respondents (54%) thought there are other possession grounds which should be included in the list. Industry bodies, landlords, lettings agents and individual respondents were the groups in which the clear majority thought further grounds were required. The remaining respondents were evenly divided between those who did not think any other grounds were required and those who did not know.

3.43 A total of 354 non-campaign respondents made a further comment at this question, and the text from Campaigns 1 and 2 also included a relevant comment. As at Question 5b above, some of the comments made general points whilst others focused on specific grounds.

3.44 Those who did not think additional grounds were required tended to make only brief further comments which often focused on the current list of 8 grounds appearing comprehensive, and on the benefits of keeping the approach as simple as possible. Those who did not know sometimes suggested that further detail on the proposed grounds and the model tenancy would be required to allow them to form a clear view.

3.45 General comments made by those who suggested further grounds were necessary sometimes suggested that the current approach (of 17 grounds) works sufficiently well and should be retained.

3.46 The most frequently made suggestion was that a no-fault ground should be included with landlord, letting agent and individual respondents most likely to make this point. Other additional grounds proposed included:

• A property being required for an employee, including for an employee of a religious body.
• A property required for a holiday let.
• The landlord cannot afford maintenance or works required under the tenancy.
• Unauthorised work carried out or persistent damage to the property.
• Persistent late payment or non-payment of rent.
• The tenant has abandoned the property.
• The property being used for illegal or immoral purposes.

Summary - Question 5c

The majority of respondents (60%) thought there are other possession grounds which should be included in the list.

The most frequently made suggestion in terms of additional grounds was that a no-fault ground should be included. Other additional grounds proposed included a property being required for an employee, persistent late payment or non-payment of rent and the tenant having abandoned the property.

Shorter Notice to Quit period in certain circumstances

3.47 The consultation paper notes that, for some of the proposed new grounds above, landlords are likely to want to regain repossession of their property as quickly as possible. The proposal is that the new tenancy regime will enable landlords to recover their property by giving tenants 28 days' Notice to Quit, regardless of how long the tenant has lived in the property, if the tenant has:

• Failed to pay full rent over three months.
• Displayed antisocial behaviour.
• Otherwise breached their tenancy agreement.

Question 6: Do you agree that landlords should be able to recover possession of their property with a 28-day notice period in the circumstances listed above?

3.48 Question 6 asked respondents if they agreed that landlords should be able to recover possession of their property with a 28-day notice period under the 3 circumstances set out above. Responses by respondent type are set out in Table 12 below.

Table 12: Question 6 - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	4	4	1	9
Campaign Body or Group	3	2	1	6
Industry Body	7	6	-	13
Landlord	31	14	3	48
Legal Body or Firm	5	3	1	9
Lettings Agent and/or Property Management	37	16	1	54
Local Authority	14	5	-	19
Tenant and/or Resident Group	9	-	-	9
Union or Political Party	4	2	1	7
Other	6	1	-	7
Total Organisations	(120)	(53)	(8)	(181)
Individuals	255	77	13	345
Total (excl. campaign responses)	(375)	(130)	(21)	(526)
Percentage (excl. campaign responses)	71%	25%	4%	100%
Campaigns	29	45	-	74
TOTAL	404	175	21	600
Percentage of those answering	67%	29%	4%	100%

3.49 The majority of all those who answered this question (67%) and of non-campaign respondents (71%) agreed that landlords should be able to recover possession of their property with a 28-day notice period under the 3 circumstances listed. The clear majority of landlord, local authority, tenant group, other and individual respondents agreed with the proposals, as did those supporting Campaign 1. However, those supporting Campaign 2 disagreed and other types of respondent (advice services, campaign bodies, industry bodies and legal body respondents), were relatively evenly divided on this issue.

3.50 A total of 364 non-campaign respondents went on to make a further comment, and the text from Campaigns 1 and 2 also included a relevant comment. This issue was also discussed at the focus groups.

3.51 Comments made included that the proposal seemed reasonable and that there will be some circumstances when a landlord will need to be regain possession of a property quickly. This was very much the view of focus group participants who were generally of the view that if the tenant was 'at fault' the landlord should be able to repossess their property quickly. Reference was also made to difficulties for landlords associated with non-payment of rent or the negative impact on the wider community of antisocial behaviour.

3.52 Some respondents, including a number of landlord and individual respondents, referred back to previous comments (primarily at Question 5), on the definition of the proposed grounds or whether they should be mandatory. In particular, a number of those supporting the proposal did so provided that a test of reasonableness would be applied.

3.53 Other caveats made by those supporting the proposal included that:

• More detail should be given and/or a clear (acceptable) definition of each of the grounds provided.
• The notice should run coterminously with the Notice to Quit.

3.54 It was also suggested, again including by those who agreed and disagreed with the proposal, that there should be some circumstances in which a shorter notice period should apply. Many of those disagreeing with the proposal suggested that the notice period should be shorter than suggested (generally 14 days), in each of the 3 circumstances identified. Industry body, landlord, letting agent and individual respondents were most likely to raise this issue. Many of those taking this view noted the timeframe for evicting a tenant on these grounds, once allowance has been made for the time it will take to get a hearing date and secure eviction following an order for possession.

3.55 However, some of those who disagreed with the proposal took the opposite view and suggested that 28 days was too short a time to find alternative accommodation. Advice service and campaign body respondents were most likely to raise this issue and a small number of focus group participants were also of this view. It was suggested, for example, that either a 6 or 8 week notice period would be fair.

Summary - Question 6

The majority of respondents (67%) agreed that landlords should be able to recover possession of their property with a 28-day notice period if the tenant has failed to pay full rent over three months, displayed antisocial behaviour or otherwise breached their tenancy agreement. However, advice services, campaign bodies, industry bodies and legal body respondents were relatively evenly divided on this issue.

Comments made included that the proposal seemed reasonable and that there will be some circumstances when a landlord will need to be regain possession of a property quickly. However, some of those supporting the proposal did so provided that a test of reasonableness would be applied.

It was also suggested, again including by those who agreed and disagreed with the proposal, that there should be some circumstances in which a shorter notice period should apply. However, some of those who disagreed with the proposal took the opposite view and suggested that 28 days was too short a time to find alternative accommodation.

Pre-tenancy notices

3.56 Under the current assured tenancy system, landlords must provide advance notice to tenants if they intend to use the current repossession grounds 1 to 5 to regain possession of their property. The proposal is that a landlord would not need to issue a pre-tenancy notice to a tenant to say they may intend to recover possession under any of the new grounds.

Question 7: Do you agree that landlords should no longer have to issue pre-tenancy notices to recover possession of their property?

3.57 Question 7 asked respondents if they agreed that landlords should no longer have to issue pre-tenancy notices to recover possession of their property. Responses by respondent type are set out in Table 13 below.

3.58 The clear majority of all respondents who answered this question (87%) and of all non-campaign respondents (85%) agreed that landlords should no longer have to issue pre-tenancy notices to recover possession of their property. The majority of advice service, campaign body, industry body, landlord, legal body, letting agent, local authority, union, other and individual respondents agreed, as did those supporting Campaigns 1 and 2. Tenant and resident group respondents were the only respondent type in which the majority did not agree.

3.59 A total of 331 respondents went on to make a further comment, and the text from Campaigns 1 and 2 also included a relevant comment. Further comments tended to be brief.

Table 13: Question 7 - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	7	2	-	9
Campaign Body or Group	6	-	2	8
Industry Body	14	-	-	14
Landlord	45	3	-	48
Legal Body or Firm	9	1	-	10
Lettings Agent and/or Property Management	44	8	2	54
Local Authority	17	2	-	19
Tenant and/or Resident Group	5	6	-	11
Union or Political Party	6	1	-	7
Other	7	-	-	7
Total Organisations	(160)	(23)	(4)	(187)
Individuals	291	23	29	343
Total (excl. campaign responses)	(451)	(46)	(33)	(530)
Percentage (excl. campaign responses)	85%	9%	6%	100%
Campaigns	74	-	-	74
TOTAL	525	46	33	604
Percentage of those answering	87%	8%	5%	100%

3.60 Those agreeing with the proposal often suggested that the notices are unnecessary and that the current system is complicated and not widely understood. Further points raised by those supporting the proposal included that any future system should be as simple (to understand and administer) as possible.

3.61 It was suggested that the arrangements should be set out clearly in the proposed model tenancy agreement including informing tenants of where to look for legal advice and support. Other issues raised included that consideration should be given to the impact which the removal of the notices could have on the administration of student lets.

3.62 Concerns raised by those who disagreed with the proposal were that the current system works well, or that it is important for tenants to be informed at the outset as to how possession can be obtained. Tenant and resident group respondents tended to refer to good housing management practices being required, and that a legal letter threatening eviction should never be the first contact from a landlord.

Summary - Question 7

The clear majority of respondents (87%) agreed that landlords should no longer have to issue pre-tenancy notices to recover possession of their property. Those agreeing with the proposal often suggested that the notices are unnecessary and that the current system is complicated and not widely understood.

Concerns raised by those who disagreed with the proposal included that the current system works well, or that it is important for tenants to be informed at the outset as to how possession can be obtained.

Notice of proceedings

3.63 A Notice of Proceedings is a document telling the tenant that their landlord wants to start legal proceedings to get their property back. Under the current system, the length of notice needed before the landlord can take legal action will depend on which of the 17 grounds the landlord has stated. A notice period of either two weeks or two months will apply.

3.64 The proposal is to simplify this process by introducing a four-week minimum notice period that a landlord must give a tenant before raising proceedings under any of the new grounds (as covered under Question 5 above).

Question 8: Do you agree that the notice period for all proceedings should be four weeks?

3.65 Question 8 asked respondents if they agreed that the notice period for all proceedings should be four weeks. Responses by respondent type are set out in Table 14 below.

3.66 Respondents were relatively evenly divided on this issue, with 52% of all those who answered the question and 54% of non-campaign respondents agreeing that the notice period for all proceedings should be 4 weeks. Landlords, letting agents, industry bodies and legal bodies or firms, were relatively evenly divided on this issue. However, many other types of respondents (advice services, campaign bodies, local authorities, tenant groups, unions and individual respondents and those supporting Campaign 1), tended to agree that all notice periods should be 4 weeks. Those supporting Campaign 2 disagreed as did the majority of the 'other' respondent group.

3.67 A total of 370 respondents went on to make a further comment, and the text from Campaigns 1 and 2 also included a relevant comment.

Table 14: Question 8 - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	7	2	-	9
Campaign Body or Group	6	-	1	7
Industry Body	7	5	-	12
Landlord	24	23	1	48
Legal Body or Firm	4	4	-	8
Lettings Agent and/or Property Management	25	26	3	54
Local Authority	17	2	-	19
Tenant and/or Resident Group	10	1	-	11
Union or Political Party	7	-	-	7
Other	1	5	1	7
Total Organisations	(108)	(68)	(6)	(182)
Individuals	173	137	32	342
Total (excl. campaign responses)	(281)	(205)	(38)	(524)
Percentage (excl. campaign responses)	54%	39%	7%	100%
Campaigns	29	45	-	74
TOTAL	310	250	38	598
Percentage of those answering	52%	42%	6%	100%

3.68 As with no longer issuing pre-tenancy notices, those supporting the 4 week proposal frequently referred to the advantages of simplicity and creating an approach which is easy to understand for landlord and tenant alike. Advice service and local authority respondents were particularly likely to highlight this issue.

3.69 Other respondents noted their understanding that it would be possible to serve the Notice to Quit and Notice of Proceedings for Possession contemporaneously. A similar suggestion was that the Notice to Quit and the Notice of Proceedings are incorporated into a single statutory notice. A legal body respondent was one of those raising this issue; they noted that an alternative would be to move to a statutory system for repossession, akin to that in the social rented sector, with the tenancy continuing unchanged until a court order is granted and with the statutory notice having no effect beyond entitling the landlord to raise proceedings.

3.70 Some of those who supported the 4 week proposal did suggest this period could be too long in certain circumstances, with these respondents referencing antisocial behaviour in particular. Tenant group respondents were particularly likely to raise this issue.

3.71 There was a considerable consensus of view amongst those disagreeing with the proposal - the view was that the 28-day notice period is too long (either overall or under certain circumstances). Those who expanded on their position often suggested that there are certain circumstances when the landlord needs to be able to act more swiftly (either to minimise their financial losses or the impact on a wider community). Industry body, landlord, letting agent and individual respondents were particularly likely to raise this issue. These respondents sometimes referred to occasions when the tenant is at fault, to Grounds 6, 7 and 8 of the proposed repossession grounds, or specifically to rent arrears and antisocial behaviour. The common view was that a 14-day notice period is sufficient and appropriate under these circumstances.

Summary - Question 8

Respondents were relatively evenly divided on whether the notice period for all proceedings should be 4 weeks, with 52% of respondents agreeing.

Those supporting the 4 week proposal frequently referred to the advantages of simplicity and creating an approach which is easy to understand for landlord and tenant alike. However, some also suggested this period could be too long in certain circumstances, with these respondents referencing antisocial behaviour in particular.

There was a considerable consensus amongst those disagreeing with the proposal - the view was that the 28-day notice period is too long (either overall or under certain circumstances. These respondents sometimes referred to occasions when the tenant is at fault, to Grounds 6, 7 and 8 of the proposed repossession grounds, or specifically to rent arrears and antisocial behaviour. The common view was that a 14-day notice period is sufficient and appropriate under these circumstances.

Notice to Quit - from tenants to landlords

3.72 The proposal is that tenants will have to give the following notice to quit the tenancy:

• Less than six months in the property = 28 days' notice (four weeks).
• Six months or more in the property = 56 days' notice (eight weeks).

3.73 This would mean that, if a tenant wishes to leave the property at the end of their tenancy agreement, the tenant will need to tell their landlord either four or eight weeks in advance. If a tenant wishes to leave the property before their tenancy agreement expires, and this is not covered in the tenancy agreement, they will need to get the landlord's permission, as now.

Question 9: Do you agree with the proposed timescales for a tenant giving notice to a landlord to leave the property?

3.74 Question 9 asked respondents if they agreed with the proposed timescales for a tenant giving notice to a landlord. Responses by respondent type are set out in Table 15 below.

3.75 As at Question 8, respondents were relatively evenly divided on this issue, although the majority of all those who answered this question (57%) and of non-campaign respondents (51%) did agree with the proposed timescales. Those supporting Campaigns 1 and 2 agreed, as did the majority of tenant group respondents. Otherwise, views were relatively evenly balanced between those agreeing and disagreeing with the proposal.

Table 15: Question 9 - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	5	4	-	9
Campaign Body or Group	3	5	-	8
Industry Body	7	5	-	12
Landlord	22	22	3	47
Legal Body or Firm	5	3	1	9
Lettings Agent and/or Property Management	24	24	4	52
Local Authority	11	9	-	20
Tenant and/or Resident Group	8	3	-	11
Union or Political Party	4	3	-	7
Other	4	3	-	7
Total Organisations	(93)	(81)	(8)	(182)
Individuals	175	150	15	340
Total (excl. campaign responses)	(268)	(231)	(23)	(522)
Percentage (excl. campaign responses)	51%	44%	4%	100%
Campaigns	74	-	-	74
TOTAL	342	231	23	596
Percentage of those answering	57%	39%	4%	100%

3.76 A total of 371 respondents went on to make a further comment, and the text from Campaigns 1 and 2 also included a relevant comment. This issue was also discussed at the focus groups.

3.77 Those who agreed with the proposal - which included the considerable majority of focus group participants - tended to suggest the approach seemed reasonable, fair and as striking a good balance between the interests of landlords and tenants.

3.78 Other points raised by those agreeing with the proposal included:

• There were some concerns as to whether tenants would understand and adhere to the notice periods and the longer notice period in particular.
• More specifically, clarification was sought as to the exact meaning of "6 months" to avoid confusion as to the length of tenant notice required.
• This could make it more difficult for a tenant to secure a new property to move into.

3.79 A small number of those agreeing with the proposed notice periods also suggested that there should be longer notice periods where the tenant has been in occupation for longer, or that the notice periods should be the same for both landlords and tenants. Many of those disagreeing with the proposal, and landlord and individual respondents in particular, made the same point.

3.80 Other comments tended to focus on either notice periods being shorter and/ or there being one single notice period. For example, it was suggested that there should be one standardised notice period for tenants and sometimes that 28 days would be appropriate. It was also suggested that the length of time a tenant has been resident does not affect the time it will take the landlord to re-let the property.

3.81 As by some of those supporting the proposal, some of those who disagreed with the proposal also suggested that having to give 8 weeks' notice could make it more difficult for the tenant to find alternative accommodation. More specifically, it was noted that in areas where supply is constrained, most obviously in rural areas, tenants are unlikely to be in a position to pass up the opportunity of accessing suitable alternative accommodation. It was also noted that in many areas competition for properties is fierce and they come onto the market and are let in relatively short periods; in such a situation someone may have to pay 'double rent' in order to secure a new home whilst still serving out the notice period on their former accommodation. This was a particular concern for those attending the Aberdeen and Glasgow focus groups.

3.82 It was also noted that tenants would need to know well in advance that they wished to leave the property and that this could restrict people's ability to move for work or study or because they either wished to buy or move into the social rented sector.

3.83 A small number of respondents favoured a 6-week or 8-week notice period. Finally, some respondents were of the view that there should be no fixed periods but that tenants and landlords should be given the flexibility to come to their own mutually agreed arrangements.

Summary - Question 9

Respondents were relatively evenly divided on this issue, although the majority (57%) did agree with the proposed timescales.

Those who agreed with the proposal tended to suggest the approach seemed reasonable, fair and as striking a good balance between the interests of landlords and tenants.

Many of those disagreeing with the proposal suggested that notice periods should be the same for both landlords and tenants. Other comments tended to focus on either notice periods being shorter and/ or there being one single notice period. It was also suggested that having to give 8 weeks' notice could make it more difficult for the tenant to find alternative accommodation.

Model Tenancy Agreement

3.84 The proposal is to introduce a requirement to use a model tenancy document for all future private rented sector lets. The consultation paper suggests this could provide consistency of practice across the sector and help ensure that it provides good-quality and well-managed housing. It could also help promote landlords' and tenants' knowledge of their rights and responsibilities.

Question 10: Do you agree that a model tenancy agreement should be introduced?

3.85 Question 10 asked respondents if they agreed that a model tenancy agreement should be introduced. Responses by respondent type are set out in Table 16 below.

3.86 The clear majority of all respondents who answered this question (79%) and of non-campaign respondents (76%) agreed with the introduction of a model tenancy agreement. There were no respondent groups in which the clear majority did not agree.

3.87 A total of 444 respondents went on to make a further comment, and the text from Campaigns 1 and 2 also included a relevant comment.

3.88 Those supporting the proposal occasionally pointed out that there are already various models which are widely used in the industry (including that provided by the Scottish Association of Landlords). Some respondents, including both those who did and did not support the proposal, noted that a 'one size fits all' approach would not be successful. Those who supported the proposal tended to stress that the model tenancy agreement will need to be sufficiently flexible to work for a diverse range of circumstances and properties. Landlord and individual respondents were particularly likely to highlight this requirement.

Table 16: Question 10 - Response by Respondent Type

Respondent Type	Yes	No	Don't Know	Total
Advice, Information & Ombudsman Services	9	-	-	9
Campaign Body or Group	10	-	-	10
Industry Body	13	-	1	14
Landlord	34	7	5	46
Legal Body or Firm	7	1	1	9
Lettings Agent and/or Property Management	41	6	7	54
Local Authority	20	-	-	20
Tenant and/or Resident Group	11	-	-	11
Union or Political Party	7	-	-	7
Other	6	2	-	8
Total Organisations	(158)	(16)	(14)	(188)
Individuals	249	54	47	350
Total (excl. campaign responses)	(407)	(70)	(61)	(538)
Percentage (excl. campaign responses)	76%	13%	11%	100%
Campaigns	74	-	-	74
TOTAL	481	70	61	612
Percentage of those answering	79%	11%	10%	100%

3.89 Many also pointed to the benefits that (further) standardisation could bring tenants, landlords and lenders. From the landlord's perspective, possible benefits identified included:

• It would provide landlords with reassurance that their lease is legally watertight.
• Tenant Information Packs would no longer be required.

3.90 From the tenant's perspective, possible benefits identified included:

• It would provide tenants with piece of mind that the lease is fair and does not contain any unreasonable contract terms.
• Tenants will become increasingly informed and knowledgeable about their rights and responsibilities.

3.91 A number of respondents sought clarifications as to how aspects of the proposed approach would work and/or what would be included in the model tenancy agreement. Points or questions raised included:

• Would extra property/party-specific clauses be partially prescribed or would the landlord have free reign to include whatever they wish? It was noted that, if prescribed, then the list of discretionary grounds will need to be comprehensive so as to ensure that all situations are catered for. Industry body respondents were particularly likely to pose this question.
• What would happen if the landlord fails to include mandatory clauses or introduces discretionary clauses that misrepresent the correct legal position?

3.92 Specific suggestions relating to the content of the model tenancy agreement or how it would be implemented included that the model should come with a covering document explaining each of the terms in plain English.

3.93 A number of respondents suggested that a range of stakeholders (including tenants, landlords and letting agents) should be involved in developing the model tenancy agreement. Some also noted that they would welcome the opportunity to be involved themselves and/or suggested that the Scottish Government should consult on the draft once it is prepared.

3.94 As noted earlier, a small number of respondents disagreed with the introduction of a model tenancy agreement. Their principle concern (along with a number of respondents who were undecided), was that it will not be possible to develop a model that is flexible enough to deal with all circumstances that can arise in such a diverse sector.

Summary - Question 10

The clear majority of respondents (79%) agreed with the introduction of a model tenancy agreement.

Although there was strong support, respondents did note that any model tenancy agreement will need to be sufficiently flexible to work for a diverse range of circumstances and properties. The principal concern of those who did not support the proposal was that it will not be possible to develop a model that is flexible enough to deal with all circumstances that can arise in such a diverse sector.