Rented sector reform: Housing (Scotland) Bill: business and regulatory impact assessment

Enforcement, sanctions and monitoring

Rent control

The provisions in the Bill give local authorities a power to request information from a landlord for the purposes of assessing rent conditions in their area. Where a landlord fails to provide the information requested, or responds to the request in a way which the local authority considers must have been known by the landlord to be materially false, a local authority may apply to the Tribunal for a payment order.

It is proposed that tenants with a PRT in an RCA will be able to make an application to a rent officer to verify proposed rent increases, to support them in challenging any proposed increase which is unlawful. Furthermore, it is proposed that tenants with a PRT in receipt of a rent increase notice for the first time since the start of their tenancy will be able to apply to the Tribunal to seek a determination on whether the rent payable at the start of a tenancy was not in accordance with rent control provisions or whether the previous rent increase for the property took effect less than 12 months earlier, in order to support the application of rent controls between tenancies in RCAs. The Tribunal will have the power to determine the correct rent for the let property in these cases.

Landlords in RCAs will be required to provide enhanced information when advertising a tenancy to prospective tenants or when entering into a tenancy with a tenant. Existing application routes will be amended so that tenants can apply to the Tribunal to seek a payment order where a landlord has failed to provide them with the required information.

Letting agents are already required by the Letting Agent Code of Practice to conduct their business in a way that complies with all relevant legislation, and a tenant, landlord, former tenant or former landlord can apply to the Tribunal to enforce the Code of Practice under the Housing (Scotland) Act 2014.^[144] An application could therefore also be made to the Tribunal against a letting agent in relation to non-compliance with rent control measures, although it is intended that an update to the Code to explicitly cover legislative changes in relation to rent control will be made in due course. Where the Tribunal decides that a letting agent has failed to comply with the Code, it must by order require the letting agent to take such steps as the Tribunal considers necessary to rectify the failure. It may also provide that the letting agent must pay the applicant such compensation as the Tribunal considers appropriate for any loss suffered by the applicant due to the failure to comply.

Non-compliance with the law relating to housing or with landlord and tenant law by individual private sector landlords and letting agents may also be taken into consideration with respect to an individual’s or business’s ‘Fit and Proper’ status when registration applications are being determined.^[145] In the case of letting agents, non-compliance with the Letting Agent Code of Practice and with any letting agent enforcement order issued by the Tribunal may also be taken into account.

The impact and effectiveness of the proposed compliance measures for RCAs can be monitored through the publicly reported decisions of the Tribunal.

Rent capping on referral or appeal

RSS and the Tribunal will be responsible for making the necessary changes to the existing rent adjudication processes to ensure that the rent is set no higher than that requested by the landlord, even if market rent would be higher. No additional enforcement or sanctions are required in relation to this measure.

Evictions: Duties to Consider Delay

The Tribunal for private housing cases and Sheriff Court for social housing cases are responsible for considering applications for eviction and the reasonableness of granting an order. Sheriff Officers have powers to enforce orders of the Tribunal and Court. Where they are instructed to enforce an order, this will include compliance with any delay to enforcement that has also been ordered.

Evictions: Unlawful eviction damages

Private and social landlords must follow the correct legal procedures for ending a tenancy and not doing so is a criminal offence and enforced by Police Scotland. Measures being progressed will make it easier for tenants to enforce their rights to claim civil damages through the Tribunal and Scottish Courts and be appropriately compensated. Changes would see the calculation of civil damages payable by the landlord changed to between three and 36 times the monthly rent. However, an amount below three months could be awarded if it was deemed appropriate in the circumstances of the case.

Private Rented Sector – Keeping Pets and Making Changes to a let property

Measures to give tenants greater rights to keep pets and to make changes to the let property would introduce an additional appeal route for private tenants in relation to the right to request a pet and not be unreasonably refused; and the right to request certain types of modification and not be unreasonably refused.

Private tenants will also be able to seek redress where a landlord has failed to respond within the required timescales or set unreasonable conditions for approval.

In making a determination, if the Tribunal decides that a refusal, or condition for approval, was unreasonable, it may make a consent Order allowing the tenant to keep a pet or make the requested change to the let property. These new routes of appeal will enable private tenants to enforce their rights.

Social Rented Sector – Keeping Pets

Measures in the Bill mean that a social landlord must intimate its consent or refusal, and any conditions imposed, to a tenant within one month of an application to keep a pet. Any such conditions must be reasonable. If no such intimation is given the landlord is taken to have consented to the application.

Social rented sector tenants can also seek redress if they are unhappy with their landlord’s decision on the keeping of pets by appealing using their landlord’s formal complaints procedure. A tenant who remains dissatisfied once the landlord has given their final decision, can then ask the Scottish Public Services Ombudsman to look at their complaint.