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

Grounds for repossession

The next 13 consultation questions covered the grounds according to which a landlord would be able to regain possession of their property.

The proposal is for there to be 11 grounds through which a landlord could seek repossession of their property. Eight of these would be mandatory grounds; this would mean that if the ground is established, the First-tier Tribunal would have to grant the landlord possession. However, there would be three grounds for which an element of discretion could be applied. The proposed grounds with a discretionary element are Grounds 6, 7 and 8. The discretionary element at Ground 6 would be when rent arrears are due to housing benefit delay. At Ground 7 it would be less serious antisocial behaviour and at Ground 8 if the tenant has otherwise breached a non-mandatory tenancy agreement condition. Should these circumstances exist, the First-tier Tribunal would have discretion to consider whether wider circumstances justify ordering possession, even though the basic ground for possession is established.

Question 5a: Do you agree that the list of repossession grounds now covers all reasonable circumstances where a landlord may wish to recover possession?

Summary Findings

The majority of respondents (71%) did not agree that the list of repossession grounds now covers all reasonable circumstances where a landlord may wish to recover possession. Those disagreeing included the majority of standard respondents (63%) and those supporting the SAL form-based and the letting agent campaigns.

The exclusion of the no-fault ground appeared to be a key driver of disagreement that the proposed list covers all reasonable circumstances where a landlord may wish to recover possession.

Those who disagreed that the list of repossession grounds now covers all reasonable circumstances often pointed to other grounds required. The most frequently sought grounds were to cover student lets or to allow a landlord who has received an Overcrowding Statutory Notice to be able to bring the tenancy to an end.

Those who agreed that the list of repossession grounds now covers all reasonable circumstances tended to make only limited further comments, generally focusing on the proposals appearing reasonable and likely to cover the majority of circumstances.

Responses by respondent type are set out in Table 8 below.

Table 8: Question 5a - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	6	1	0	0	7
Campaign Body or Group	4	4	0	1	9
Industry Body	2	11	0	0	13
Landlord	10	32	0	2	44
Legal Body or Firm	1	3	0	0	4
Letting Agent and/or Property Management	6	28	1	0	35
Local Authority	16	1	0	0	17
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	3	0	0	1	4
Other	0	4	0	0	4
Total Organisations	(50)	(85)	(1)	(4)	(140)
Individuals	53	120	0	15	188
Total (excl. campaigns)	103	205	1	19	328
Percentage (excl. campaigns)	31%	63%	0%	6%	100%
SAL form-based campaign	0	65	0	0	65
Letting Agent campaign	0	25	0	0	25
TOTAL	103	295	1	19	418
% of those answering the question	25%	71%	0%	5%	100%

The majority of respondents (71% of those answering this question) disagreed with the proposal, including the majority of standard respondents (63% of those answering) and those supporting the SAL form-based campaign and the letting agent campaign. The majority of industry body, landlord, legal body, letting agent, 'other' and individual respondents disagreed. However, the majority of advice service, local authority, tenant group and union respondents were in agreement. Campaign body respondents were evenly divided.

Respondents raised a broad range of issues at this question and, as noted earlier, further comments on certain frequently raised issues have also been included within the analysis presented here. In particular, although this consultation did not ask about a no-fault ground, a number of respondents commented on this issue, either at Question 5a or elsewhere within their response. The very substantial majority of those raising this issue called for its inclusion. Many of the further comments made raised similar issues as at the first consultation, namely that not including a no-fault ground will add to the risks for those investing in properties for private rent and could have an adverse effect on the overall health of the sector. The exclusion of the no-fault ground appeared to be a driver of disagreement that the proposed list covers all reasonable circumstances where a landlord may wish to recover possession.

In terms of additional grounds required (other than a no-fault ground) the most frequently made suggestions were that provision be made for the following:

• Regaining possession of properties being let to the student market. It was suggested this should apply beyond purpose-built student accommodation. This was the most frequently made suggestion and was put forward by those supporting the SAL form-based campaign as well as a number of standard respondents. Industry bodies, landlords, letting agents and individual respondents were amongst those making this suggestion.
• Allowing a landlord who has received an Overcrowding Statutory Notice to be able to bring the tenancy to an end thereby allowing them to comply with the notice. This was the next most frequently made suggestion and was put forward by those supporting the SAL form-based campaign as well as a number of standard respondents. Industry bodies, landlords, letting agents and individual respondents were amongst those making this suggestion.
• Regaining possession if a property is required to house an employee or worker. This was sometimes connected with an expansion of the proposed Ground 11 and tended to be raised with reference to the rural economy, and agriculture and tourism in particular. Industry bodies, landlords, letting agents and individual respondents were amongst those making this suggestion.

Other suggestions included dealing with the type of antisocial behaviour that may not lead to conviction, dealing with sub-letting, addressing persistent late payment of rent or dealing with damage to the property or making changes to the property without permission.

Those who agreed that the list of repossession grounds now covers all reasonable circumstances tended to make only limited further comments. They sometimes welcomed the inclusion of one or more of the grounds which have been added since the first consultation or suggested that the grounds as proposed appear fair and reasonable and likely to cover the majority of circumstances. It was also suggested that a specific ground to cover the student letting market would have been unnecessary.

Question 5b: Do you agree that the First-tier Tribunal should have an element of discretion in grounds 6, 7, and 8?

Summary Findings

The majority of respondents (68%) disagreed that the First-tier Tribunal should have an element of discretion in grounds 6, 7 and 8. Those disagreeing included the majority of standard respondents (59%) and those supporting the SAL form-based campaign and the letting agent campaign.

Those who disagreed most frequently noted their disappointment that the grounds are no longer proposed as being entirely mandatory, particularly in the light of the decision not to include a no-fault ground for ending a tenancy. Further points raised by this group of respondents included that landlords should not be expected to and may not be able to cope with loss of rental income caused by delays in processing housing benefit.

Those who agreed with the proposal most frequently noted the importance of the First-tier Tribunal being able to exercise discretion. The next most frequently made point was that discretion should apply to some, if not all, of the other eight proposed grounds.

Responses by respondent type are set out in Table 9 below.

Table 9: Question 5b - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	7	0	0	0	7
Campaign Body or Group	9	0	0	0	9
Industry Body	5	6	1	0	12
Landlord	13	24	1	3	41
Legal Body or Firm	3	1	0	0	4
Letting Agent and/or Property Management	9	25	0	1	35
Local Authority	17	0	0	0	17
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	4	0	0	0	4
Other	1	3	0	0	4
Total Organisations	(70)	(60)	(2)	(4)	(136)
Individuals	36	126	1	16	179
Total (excl. campaigns)	106	186	3	20	315
Percentage (excl. campaigns)	34%	59%	1%	6%	100%
SAL form-based campaign	0	65	0	0	65
Letting Agent campaign	0	25	0	0	25
TOTAL	106	276	3	20	405
% of those answering the question	26%	68%	1%	5%	100%

The majority of respondents (68% of those answering this question) disagreed with the proposal, including the majority of standard respondents (59% of those answering) and those supporting the SAL form-based campaign and the letting agent campaign. The majority of industry body, landlord, letting agent, 'other' and individual respondents disagreed. However, the majority of advice service, campaign body, legal body, local authority, tenant group and union respondents were in agreement.

Respondents who disagreed that the First-tier Tribunal should be able to exercise an element of discretion at Grounds 6, 7 and 8 sometimes noted their disappointment that the initial proposals had been changed, particularly in the light of the decision not to include a no-fault ground for ending a tenancy. General concerns included that introducing a mandatory element will inevitably lead to many more cases going to the First-tier Tribunal and that the Tribunal is unlikely to have the necessary resources to cope with the volume of work in an efficient and timely manner. There were also concerns that the legal costs associated with taking a mandatory ground to the First-tier Tribunal could increase overall management costs and result in reduced yields.

More detail on concerns raised about each of the individual grounds is set out under the relevant questions below, but the most frequently raised issues at Question 5b were:

• Concerns about the delays in housing benefit turning what would otherwise be a mandatory arrears case into a discretionary one. It was suggested that many landlords do not have the necessary financial buffer to cover the possibly lengthy delays that could be involved.
• That Ground 7 will not give landlords confidence that they will be able to evict a tenant who is committing antisocial behaviour.
• That it is difficult to comment on Ground 8 until further information is available as to which elements would be mandatory and which discretionary.

Those who agreed with the proposal sometimes welcomed the changes to the earlier proposals, which had suggested that all of the proposed grounds would be mandatory. These respondents sometimes stated that they had been concerned that the previous approach would have been too inflexible and could have led to people losing their homes based on relatively small infringements. However, a number of those agreeing that Grounds 6, 7 and 8 should be discretionary also went on to suggest that discretion should apply to some, if not all, of the other eight proposed grounds.

Another frequently raised issue was what is meant by discretion, with some respondents voicing their concern that the term is too vague. However, the proposal that clauses setting out whether a particular breach of the tenancy would be mandatory or discretionary be included in the proposed model tenancy agreement was also welcomed. Other comments suggested that it would be sensible to frame the discretion broadly in line with the 'test of reasonableness' set out in the Scottish Secure Tenancy regime. It was noted that this approach would allow the First-tier Tribunal to draw on existing case law.

Proposed Grounds for Repossession

Question 6 asked respondents to consider each of proposed repossession grounds in turn and asked whether, from the details provided in the consultation paper, respondents agreed that each of the repossession grounds will work effectively. In addition to, or instead of, commenting on each ground, a small number of respondents made an overarching comment at Question 6.

Ground 1: The landlord is selling the home

Ground 1 covers the landlord selling the home and would be a mandatory ground. In summary, the landlord would be required to give the tenant a written statement explaining they intended to start actively trying to sell the property. A tenant who was not satisfied that the landlord wished to sell the property would be able to refer the case to the First-tier Tribunal. The Tribunal would be able to award a former tenant a maximum of three months' rent if it decided the landlord had acted inappropriately. If a landlord put a property up for sale but was unable to sell it and wished to re-let it within six months of the tenant leaving, they would have to offer the original tenant first refusal of a further tenancy.

Summary Findings

Respondents were relatively evenly divided on Ground 1, with no clear majority in agreement or disagreement. The largest proportion of respondents (49%) did not think that Ground 1 would work effectively. Of the remainder, 42% thought it would, 7% did not know and 1% held a mixed view.

A number of respondents, principally but not exclusively amongst those disagreeing that the Ground would work effectively, commented on the requirement to offer 'first refusal' to the former tenant if the property is not sold. Most of those raising this issue did not think this requirement was workable.

Those who agreed that Ground 1 would work effectively made a range of further comments, including that landlords should be required to provide clear and robust evidence that they are taking steps to sell the property.

Responses by respondent type are set out in Table 10 below.

Table 10: Question 6, Ground 1 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	2	3	0	1	6
Campaign Body or Group	3	5	0	1	9
Industry Body	5	5	0	2	12
Landlord	31	5	0	4	40
Legal Body or Firm	1	1	0	1	3
Letting Agent and/or Property Management	12	19	2	2	35
Local Authority	11	1	0	4	16
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	2	1	0	0	3
Other	1	1	0	2	4
Total Organisations	(70)	(42)	(2)	(17)	(131)
Individuals	99	65	1	12	177
Total (excl. campaigns)	169	107	3	29	308
Percentage (excl. campaigns)	55%	35%	1%	9%	100%
SAL form-based campaign	0	65	0	0	65
Letting Agent campaign	0	25	0	0	25
TOTAL	169	197	3	29	398
% of those answering the question	42%	49%	1%	7%	100%

Respondents were relatively evenly divided on Ground 1, with no clear majority in agreement or disagreement. The largest proportion of respondents (49% of those answering this question) did not think that Ground 1 would work effectively. Of the remainder, 42% thought it would, 7% did not know and 1% held a mixed view. However, a small majority of standard respondents did support the Ground, including the majority of landlord, local authority, tenant group, union and individual respondents. The majority of advice service, campaign body and letting agent respondents disagreed, as did those supporting the SAL form-based campaign and the letting agent campaign.

The most frequently raised issue (raised principally but not exclusively amongst those disagreeing that the Ground would work effectively) was that the requirement to offer 'first refusal' to the former tenant if the property is not sold would not be workable. Frequently raised concerns included that the landlord may not know the whereabouts of their former tenant (who may move several times in a six-month period) and that tracing them could prove both difficult and time consuming. Other reservations included that, in all likelihood, the tenant will have found another home and would not wish to return. A suggested compromise was that the landlord should only have to offer the former tenant a new tenancy if the former tenant specifically requests it.

A smaller number of the respondents who disagreed with Ground 1 being a mandatory ground^[2] were of the view that all repossessions should be subject to a Tribunal process and a Notice to Leave. For this particular Ground, it was suggested that in all cases the First-tier Tribunal should have to be satisfied that the landlord is genuinely selling the home before granting possession and allowing the Notice to Leave to be issued.

Those who agreed that Ground 1 would work effectively made a range of further comments, many of which noted points or made suggestions about how the Ground should work in practice. The most frequently raised issues were that:

• Landlords should be required to provide clear and robust evidence that they are taking steps to sell the property.
• The property owner may want or need to refurbish or improve the property before putting it onto the market and this would mean they would need vacant possession before commissioning an estate agent or a Home Report.
• A property could be sold on as a privately rented property. Suggestions included that a tenant should only be required to leave if the purchaser does not intend to rent the property out. However, it was also noted that in some cases sale may require vacant possession.

Ground 2: The mortgage lender is selling the home because the landlord has broken the loan's conditions

Ground 2 covers the mortgage lender selling the property because the landlord has broken their loan conditions. A lender's letter would have to be provided to the tenant, showing that the property must be sold to repay the lending secured on it. The landlord or lender would have to provide sufficient proof that the ground is met.

Summary Findings

The majority of respondents (85%) agreed that Ground 2 would work effectively and tended to make only limited further comments. These included that it is important to give lenders confidence that they can take action if loan terms have been breached. Suggestions made by those agreeing the Ground would work effectively included that consideration should be given to allowing lenders to sell the property with the tenant in situ.

Responses by respondent type are set out in Table 11 below.

Table 11: Question 6, Ground 2 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	4	2	0	0	6
Campaign Body or Group	3	5	0	1	9
Industry Body	8	0	0	2	10
Landlord	32	1	0	4	37
Legal Body or Firm	3	1	0	0	4
Letting Agent and/or Property Management	31	1	2	1	35
Local Authority	15	1	0	0	16
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	1	1	0	1	3
Other	1	0	0	3	4
Total Organisations	(100)	(13)	(2)	(12)	(127)
Individuals	143	18	0	12	173
Total (excl. campaigns)	243	31	2	24	300
Percentage (excl. campaigns)	81%	10%	1%	8%	100%
SAL form-based campaign	65	0	0	0	65
Letting Agent Campaign	25	0	0	0	25
TOTAL	333	31	2	24	390
% of those answering the question	85%	8%	1%	6%	100%

The majority of respondents (85% of those answering) agreed that Ground 2 would work effectively, including the majority of standard respondents (81% of those answering) and those supporting the SAL form-based campaign and the letting agent campaign. Campaign body respondents were the only group of respondents in which the majority did not agree that Ground 2 would work effectively, although union respondents were evenly divided on the issue.

Those agreeing that Ground 2 would work effectively tended to make only limited further comments. These included that it is important to give lenders confidence that they can take action if loan terms have been breached. Suggestions made by those agreeing the Ground would work effectively included that consideration should be given to allowing lenders to sell the property with the tenant in situ.

As at other grounds, some respondents sought further clarification and/or guidance setting out detail on how the Ground will work. Examples of information sought included what will constitute sufficient proof.

Those who did not believe Ground 2 would work effectively most frequently suggested that the Ground should be discretionary. Proposed changes to the Ground included that there is no need to end the tenancy in order to sell the property, which should be re-sold as a business.

Ground 3: The landlord or a family member of the landlord wants to move into the property as their principal home

Ground 3 covers the landlord or a family member of the landlord wanting to move into the property as their principal home. The definition of 'family member' would be similar to that at Section 128 of the Housing (Scotland) Act 2006 (updated). The Notice to Leave would specify: the intended occupant's identity; his or her relationship to the landlord (if not the landlord); and the expected duration of the occupancy (which must be at least three months).

The landlord would have to offer the former tenant a further tenancy of the property if it is vacated by the person referred to in the Notice to Leave within six months from the end of the relevant notice period. If the tenant is not satisfied that the landlord wants the property for themselves or a family member, they would be able to refer a case to the First-tier Tribunal. The tenant would still be able to refer a case to the First-tier Tribunal after moving out. If the tenant has already moved out of the property, the First-tier Tribunal could award the former tenant up to a maximum of three months' rent.

Summary Findings

Respondents were relatively evenly divided on Ground 3, with no clear majority in agreement or disagreement (48% agreed and 43% disagreed). Those agreeing that Ground 3 would work effectively sometimes made only brief further comments, including that defining 'family member' will provide the basis for clear and consistent decisions.

As at some other grounds, a number of respondents suggested the Ground should be discretionary. Also as at other grounds the practicality and value of the requirement to offer the former tenant another tenancy was questioned.

Responses by respondent type are set out in Table 12 below.

Table 12: Question 6, Ground 3 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	3	3	0	0	6
Campaign Body or Group	3	4	0	2	9
Industry Body	5	5	0	2	12
Landlord	31	3	0	5	39
Legal Body or Firm	3	0	0	0	3
Letting Agent and/or Property Management	14	16	1	3	34
Local Authority	11	2	0	3	16
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	1	1	0	1	3
Other	1	0	1	2	4
Total Organisations	(74)	(35)	(2)	(18)	(129)
Individuals	92	71	0	14	177
Total (excl. campaigns)	166	106	2	32	306
Percentage (excl. campaigns)	54%	35%	1%	10%	100%
SAL form-based campaign	0	65	0	0	65
Letting Agent campaign	25	0	0	0	25
TOTAL	191	171	2	32	396
% of those answering the question	48%	43%	1%	8%	100%

As on Ground 1, respondents were relatively evenly divided on Ground 3, with no clear majority in agreement or disagreement. The largest proportion of respondents (48% of those answering this question) did think that Ground 3 would work effectively. Of the remainder, 43% thought it would not, 8% did not know and 1% held a mixed view. However, a small majority of standard respondents did support the Ground (54% of those answering) including the majority of landlord, legal body, local authority, tenant group, 'other' and individual respondents and those supporting the letting agent campaign. The majority of campaign body and letting agent respondents did not, along with those supporting the SAL form-based campaign. Advice service, industry body and union respondents were evenly divided.

Those agreeing that Ground 3 would work effectively generally made only brief further comments, including that it will be important to ensure the definition of family member is clear, along with the proofs required to demonstrate that the Ground has been met.

The most frequently made point by some margin questioned the practicality and value of offering the former tenant another tenancy. This issue was usually raised by those who disagreed but was also raised by a small number of those who agreed. Another frequently raised issue by those who disagreed was the possibility of tenants making unreasonable referrals to the First-tier Tribunal and that this could lead to very considerable hardship for some landlords.

As at some other grounds, a small number of respondents suggested that Ground 3 should be discretionary. This was more likely to be suggested by those who had disagreed but was also suggested by a small number of those who had agreed. There was a similar pattern among the small number who suggested that it would be preferable for the initial tenancy to run its length before a landlord is able to regain possession using this Ground.

Ground 4: Refurbishment

Ground 4 covers refurbishment and would be similar to the provisions for refurbishment that currently exist under the Assured Tenancy system. These are specifically that the landlord intends to demolish or reconstruct the whole or a substantial part of the house or to carry out substantial works and these works cannot reasonably be carried out without the tenant giving up possession of the property.

Under Ground 4, the landlord would have to pay the tenant's reasonable removal expenses. If the parties cannot agree on the sum, a case could be referred to the First-tier Tribunal for a decision on what expenses are reasonable. If the tenant is not satisfied that the landlord wants to refurbish the property, they could also refer a case to the First-tier Tribunal and they would still be able to do so after moving out. If the tenant has already moved out of the property, the First-tier Tribunal could award them a maximum of three months' rent.

Summary Findings

Respondents were again relatively evenly divided on Ground 4, with no clear majority in agreement or disagreement (48% agreed and 45% disagreed). The most frequently made comment by those agreeing that Ground 4 would work effectively was that it is important to ensure that properties are maintained and that there will be occasions on which this requires vacant possession. The most frequently raised issue by those who disagreed that Ground 4 would work effectively was that the landlord should not have to cover removal expenses.

Responses by respondent type are set out in Table 13 below.

Table 13: Question 6, Ground 4 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	4	2	0	0	6
Campaign Body or Group	4	4	0	0	8
Industry Body	2	5	1	3	11
Landlord	26	8	1	4	39
Legal Body or Firm	3	1	0	0	4
Letting Agent and/or Property Management	13	21	1	1	36
Local Authority	15	1	0	0	16
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	1	2	0	0	3
Other	1	1	0	2	4
Total Organisations	(71)	(46)	(3)	(10)	(130)
Individuals	91	67	0	15	173
Total (excl. campaigns)	162	113	3	25	303
Percentage (excl. campaigns)	53%	37%	1%	8%	100%
SAL form-based campaign	0	65	0	0	65
Letting Agent campaign	25	0	0	0	25
TOTAL	187	178	3	25	393
% of those answering the question	48%	45%	1%	6%	100%

Respondents were again relatively evenly divided on Ground 4, with no clear majority in agreement or disagreement. The largest proportion of respondents (48% of those answering this question) did think that Ground 4 would work effectively. Of the remainder, 45% thought it would not, 6% did not know and 1% held a mixed view. However, a small majority of standard respondents did support the Ground (53% of those answering) including the majority of advice service, landlord, legal body, local authority, tenant group and individual respondents, along with those supporting the letting agent campaign. The majority of industry body, letting agent and union respondents did not, along with those supporting the SAL form-based campaign. Campaign body and 'other' respondents were evenly divided.

Those agreeing that Ground 4 would work effectively made a diverse range of further comments, the most frequently made of which was that it is important to ensure that properties are maintained and that there will be occasions on which this requires vacant possession. Further points made by small numbers of those who agreed included that adequate safeguards will need to be built in to ensure that the Ground is not abused. In particular, it was suggested that care will need to be taken in drawing up key definitions, such as what constitutes substantial works.

Disagreeing with a landlord having to cover removal expenses was the most frequently made comment by those who did not think Ground 4 would work effectively. There was an associated concern that this approach could act as a disincentive to carry out essential repairs or improvement work.

As at other grounds, a small number of respondents (primarily those who disagreed) were of the view that the ground should be discretionary, with factors such as whether there is a proven need for the refurbishment or the potential hardship resulting to the tenant taken into account.

Ground 5: Change of business use, e.g. from home to shop (from residential to non-residential)

Ground 5 covers change of business use. The consultation paper notes that the evidence landlords would be able to use to demonstrate this Ground will be covered in the proposed guidance for the First-tier Tribunal. At this stage, it is suggested that it may include proof of a planning application or planning permission.

Under this ground, the landlord would have to pay the tenant's reasonable removal expenses and, if the parties were unable to agree on the sum, a case could be referred to the First-tier Tribunal for a decision on what would be reasonable. The tenant would also be able to refer the case to the First-tier Tribunal if they were not satisfied that the landlord wants to change the use of the property and they could still make that referral after moving out. If the tenant has already moved out of the property, the First-tier Tribunal could award the former tenant up to a maximum of three months' rent.

Summary Findings

Respondents were divided on this question, although a very small majority (51%) agreed that Ground 5 would work effectively. Those agreeing that Ground 5 would work effectively tended to make relatively limited further comments. The most frequently raised issue by those disagreeing was that a landlord should not be required to cover a tenant's removal expenses.

Responses by respondent type are set out in Table 14 below.

Table 14: Question 6, Ground 5 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	3	3	0	0	6
Campaign Body or Group	5	3	0	0	8
Industry Body	5	3	0	2	10
Landlord	29	4	0	6	39
Legal Body or Firm	3	1	0	0	4
Letting Agent and/or Property Management	14	18	1	2	35
Local Authority	15	1	0	1	17
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	2	1	0	0	3
Other	1	0	0	3	4
Total Organisations	(79)	(35)	(1)	(14)	(129)
Individuals	97	60	0	20	177
Total (excl. campaigns)	176	95	1	34	306
Percentage (excl. campaigns)	58%	31%	0%	11%	100%
SAL form-based campaign	0	65	0	0	65
Letting Agent campaign	25	0	0	0	25
TOTAL	201	160	1	34	396
% of those answering the question	51%	40%	0%	9%	100%

Respondents were divided on this issue, although a very small majority (51% of those answering this question) agreed that Ground 5 would work effectively. A slightly higher proportion of standard respondents (58% of those answering) thought the Ground would work effectively, as did those supporting the letting agent campaign. Those supporting the SAL form-based campaign did not. Amongst the standard respondents, the majority of campaign body, industry body, landlord, legal body, local authority, tenant group, 'other' and individual respondents agreed. Advice service respondents were evenly divided, while letting agents were the only group in which a majority disagreed.

Those agreeing that Ground 5 would work effectively tended to make relatively limited further comments. Issues raised included that this Ground is likely to be used rarely but that it will nevertheless be important to ensure that clear proofs are required.

The most frequently raised issue by those disagreeing that Ground 5 would work effectively was that landlords should not be expected to cover removal expenses.

As at other grounds which are proposed as mandatory, a small number of respondents suggested that a discretionary approach should be adopted. Further comments made by those who did not agree that Ground 5 would work effectively included that a landlord should have to wait until their tenant ends the tenancy before changing the property's use.

Ground 6: The tenant has failed to pay full rent over three consecutive months

Ground 6 covers the tenant failing to pay full rent over three consecutive months. It would be a mandatory ground where the arrears equate to at least one month's full rent. It would be discretionary if the arrears are less than one month's full rent or if failure to pay rent is due to a delay in housing benefit. If a tenant has failed to pay in full over two consecutive months, then before taking any repossession action, the landlord would send a Notice to Leave informing the tenant that if they fail to clear the arrears by the end of the following month then mandatory repossession may be sought. If on reaching the end of the three-month period, the tenant is still in rent arrears, the landlord would be able to refer the case to the First-tier Tribunal immediately.

If at the date the First-Tier Tribunal is considering the case, the tenant is still in rent arrears and the amount of rent arrears equates to at least one full month's rent, or if the tenant has at any point during the tenancy been in rent arrears over a period of three consecutive months and the amount of those arrears at any point in that period equated to at least one full month's rent, the First-tier Tribunal would have to order possession. If this is not the case, or if the tenant's rent arrears have fully or partly been caused by a delay in housing benefit, the tribunal may order possession.

Summary Findings

The majority of respondents (60%) did not agree that the Ground would work effectively. Those disagreeing included 48% of standard respondents and those supporting the SAL form-based campaign and the letting agent campaign.

One of the two most frequently raised issues by those disagreeing at Ground 6 was that the Ground will not work as currently proposed but would operate effectively if the Notice to Leave could be issued as soon as the second month's rent falls due, with the referral to the First-tier tribunal possible as soon as the third month's rent falls due. The other most frequently raised point was that, as currently constituted, the Ground would not address or prevent persistent arrears that are less than one month's rent.

Others who disagreed that Ground 6 would work effectively did so for very different reasons. These respondents were tending to look for the First-tier Tribunal to be able to exercise much wider discretion, with some suggesting there should be no arrears-related circumstances under which it should be mandatory to grant possession.

Responses by respondent type are set out in Table 15 below.

Table 15: Question 6, Ground 6 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	2	3	0	0	5
Campaign Body or Group	4	3	0	0	7
Industry Body	3	7	0	1	11
Landlord	24	14	0	1	39
Legal Body or Firm	1	2	0	1	4
Letting Agent and/or Property Management	12	21	1	2	36
Local Authority	12	3	0	2	17
Tenant and/or Resident Group	3	0	0	0	3
Union or Political Party	1	0	0	1	2
Other	1	2	0	1	4
Total Organisations	(63)	(55)	(1)	(9)	(128)
Individuals	75	88	0	6	169
Total (excl. campaigns)	138	143	1	15	297
Percentage (excl. campaigns)	46%	48%	0%	5%	100%
SAL form-based campaign	0	65	0	0	65
Letting Agent campaign	0	25	0	0	25
TOTAL	138	233	1	15	387
% of those answering the question	36%	60%	0%	4%	100%

The majority of respondents (60% of those answering this question) did not agree that the Ground would work effectively. Those disagreeing included 48% of standard respondents and those supporting the SAL form-based campaign and the letting agent campaign. The majority of advice service, industry body, legal body, letting agent, 'other' and individual respondents disagreed, while the majority of campaign body, landlord, local authority, tenant group and union respondents agreed.

One of the two most frequently raised issues by those disagreeing at Ground 6 was that the Ground will not work as currently proposed but would operate effectively if the Notice to Leave could be issued as soon as the second month's rent falls due, with the referral to the First-tier tribunal possible as soon as the third month's rent falls due. Industry bodies, landlords, letting agents, individual respondents and those supporting the SAL form-based campaign were amongst those making this suggestion. Those supporting the letting agent campaign were amongst those suggesting Ground 6 should be mandatory for two rather than three month's rent arrears.

The other most frequently raised point was that as currently constituted the Ground would not address or prevent persistent arrears that are less than one month's rent. The issue of persistent late payment of rent was also raised by a small number of those agreeing with the proposal, with further comments including a concern that the proposals could allow for a tenant to be in constant arrears for the entirety of their tenancy agreement. The suggested solutions included that Ground 6 should be mandatory if the tenant owes any amount of rent for a consecutive period of three months or more, or that the three months in which rent is not paid in full should not have to be consecutive.

A small number of respondents commented specifically on arrears arising from delays in receiving housing benefit at this question, although a much larger number of respondents had already raised this concern at Question 5b. Some took the view that this is not an area in which discretion should be exercised; in other words landlords should not have to accommodate the late payment of housing benefit for whatever reason. An alternative perspective was that the tenant should be required to evidence that any delay in payment of housing benefit is not through actions of their own and housing benefit is due to be paid.

Other comments concerning how the Ground could work effectively included that regaining possession using Ground 6 must be quick and cost-effective or that the First-tier Tribunal should be obliged to provide a decision within set timescales.

Others who disagreed that Ground 6 would work effectively did so for very different reasons. These respondents, including a number of advice agencies and campaign bodies, were tending to look for the First-tier Tribunal to be able to exercise much wider discretion, with some suggesting there should be no arrears-related circumstances under which it should be mandatory to grant possession. Other suggestions included that there should be discretion whenever the cause of the rent arrears is not the tenant's fault and that in seeking to use Ground 6, a landlord should have to undertake similar 'pre-action requirements' to those required of a social landlord. Other suggestions included that the equivalent of three full months' rent arrears should be required before it would be mandatory for the First-tier Tribunal to grant possession.

Comments made by those supporting this ground tended to be brief and included that the proposal seems fair or reasonable. Some of those who agreed suggested that the situations under which discretion can be exercised should be as widely drawn as possible. Others made similar points to some of those who had disagreed, including when it should be possible to serve the Notice to Leave and whether housing benefit related arrears should or should not be taken into account. There were also concerns that while the definition takes into account delays as a result of housing benefit, it does not make reference to tenants in receipt of Universal Credit.

Ground 7: The tenant has displayed antisocial behaviour

Ground 7 covers a tenant displaying antisocial behaviour and would be a mandatory ground where a tenant has a relevant conviction, and a discretionary ground where judgment must be exercised.

If a tenant, a person living in the property or a person visiting the property has been convicted of using the property or allowing it to be used for immoral or illegal purposes, or has been convicted of an offence punishable by imprisonment committed in, or in the locality of, the property, the First-tier Tribunal would have to order possession.

If a tenant, a person living in the property or a person visiting the property has acted in an antisocial manner towards a person residing in, visiting or otherwise engaged in lawful activity in the locality, or has pursued a course of conduct amounting to harassment of such a person or a course of conduct that is otherwise antisocial conduct towards such a person, then the First-tier tribunal may order possession.

Summary Findings

Respondents were again divided on Ground 7 with no clear majority in agreement or disagreement. The largest proportion of respondents (46%) thought that Ground 7 would work effectively. Of the remainder, 45% thought it would not and 8% did not know. However, a small majority of standard respondents did support the Ground (52% of those answering).

Those agreeing with this proposal sometimes welcomed the introduction of a discretionary element at this Ground, although the most frequently made comment by those who agreed - including those supporting the letting agent campaign - was that the ground should be mandatory.

Those who disagreed most frequently pointed to the difficulties in proving that antisocial behaviour is taking place and suggested that it would be helpful to set clear parameters as to the evidence considered reasonable to secure an eviction. It was suggested that the mandatory element should be extended to cover cases where confirmation of at least two instances of antisocial behaviour by tenants or their visitors at the property is given by the police or a local authority noise or antisocial behaviour team.

Others also commented on the definitions to be used, including noting that antisocial behaviour is very difficult to prove and that this places extra importance on definitions being clear and watertight.

Responses by respondent type are set out in Table 16 below.

Table 16: Question 6, Ground 7 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	3	2	0	0	5
Campaign Body or Group	4	4	0	1	9
Industry Body	2	7	0	2	11
Landlord	23	12	0	4	39
Legal Body or Firm	1	2	0	1	4
Letting Agent and/or Property Management	18	12	1	3	34
Local Authority	14	1	0	2	17
Tenant and/or Resident Group	3	0	0	0	3
Union or Political Party	0	2	0	1	3
Other	1	1	0	2	4
Total Organisations	(69)	(43)	(1)	(16)	(129)
Individuals	89	71	0	15	175
Total (excl. campaigns)	158	114	1	31	304
Percentage (excl. campaigns)	52%	38%	0%	10%	100%
SAL form-based campaign	0	65	0	0	65
Letting Agent campaign	25	0	0	0	25
TOTAL	183	179	1	31	394
% of those answering the question	46%	45%	0%	8%	100%

Respondents were again divided on Ground 7 with no clear majority in agreement or disagreement. The largest proportion of respondents (46% of those answering this question) thought that Ground 7 would work effectively. Of the remainder, 45% thought it would not and 8% did not know. However, a small majority of standard respondents did support the Ground (52% of those answering) including the majority of advice service, landlord, letting agent, local authority, tenant group and individual respondents, along with those supporting the letting agent campaign. The majority of industry body, legal body and union respondents disagreed, as did those supporting the SAL form-based campaign. Campaign body and 'other' respondents were evenly divided.

A small number of those agreeing with this proposal welcomed the introduction of a discretionary element at this Ground, particularly given the possible vulnerability of some of those who may be involved. However, the most frequently made comment by those who agreed - including those supporting the letting agent campaign - was that the ground should be mandatory.

A small number of the respondents who disagreed that the Ground would work effectively suggested that the Ground should be discretionary in all cases. Others who disagreed took a different view and, as with some of those who had agreed, suggested that Ground 7 should always be mandatory.

However, those who disagreed most frequently pointed to the difficulties in proving that antisocial behaviour is taking place and suggested that it would be helpful to set clear parameters as to the evidence considered reasonable to secure an eviction. These respondents - who included industry bodies, landlords, letting agents, individual respondents and those supporting the SAL form-based campaign - suggested that the mandatory element should be extended to cover cases where confirmation of at least two instances of antisocial behaviour by tenants or their visitors at the property is given by the police or a local authority noise or antisocial behaviour team.

Others also commented on the definitions to be used, including noting that antisocial behaviour is very difficult to prove and that this places extra importance on definitions being clear and watertight. A number of those who neither agreed nor disagreed that the Ground would work effectively also commented on the importance of creating effective, workable definitions. Some of those raising these concerns suggested that the inclusion of a no-fault ground would provide the obvious solution to the problem.

Additional issues highlighted by those disagreeing that Ground 7 would work effectively included that being unable to address antisocial behaviour can have a detrimental effect on a landlord's business, particularly if they are operating in the HMO sector.

Ground 8: The tenant has otherwise breached the clauses of their tenancy agreement

Ground 8 covers a tenant otherwise breaching the clauses of their tenancy agreement. The Ground would be mandatory or discretionary depending on which of the clauses has been breached.

The model tenancy agreement will contain mandatory and discretionary clauses and a statutory guidance note that outlines the clauses in plain language. The content of the model tenancy agreement will be set out in secondary legislation rather than in the forthcoming Bill. The Scottish Government intends to consult stakeholders while developing the model agreement and seek views on which of the clauses should attract either the mandatory or the discretionary parts of the ground.

Summary Findings

The majority of respondents (60%) agreed that Ground 8 would work effectively. However, a number of respondents, drawn from those who answered yes, no, don't know or gave a mixed answer, felt that they needed first sight of a draft model tenancy agreement in order to assess the viability and then give a clear view on this Ground.

Responses by respondent type are set out in Table 17 below.

Table 17: Question 6, Ground 8 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	1	2	0	2	5
Campaign Body or Group	4	1	0	3	8
Industry Body	5	1	0	3	9
Landlord	19	7	2	12	40
Legal Body or Firm	1	1	0	2	4
Letting Agent and/or Property Management	12	11	2	10	35
Local Authority	11	1	0	5	17
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	1	1	0	1	3
Other	1	0	0	3	4
Total Organisations	(57)	(26)	(4)	(41)	(128)
Individuals	87	48	3	37	175
Total (excl. campaigns)	144	74	7	78	303
Percentage (excl. campaigns)	48%	24%	2%	26%	100%
SAL form-based campaign	65	0	0	0	65
Letting Agent campaign	25	0	0	0	25
TOTAL	234	74	7	78	393
% of those answering the question	60%	19%	2%	20%	100%

The majority of respondents (60% of those answering this question) agreed that Ground 8 would work effectively. Those supporting the SAL form-based campaign and the letting agent campaign agreed with the proposal. The largest proportion of standard respondents agreed (48% of those answering) although not the majority. The remaining standard respondents were relatively evenly divided between those who disagreed (24%) and those who did not know (26%). This pattern tended to be reflected broadly across the groups of standard respondents, with the proportion of respondents who disagreed or did not know often broadly equivalent to the proportion who agreed. However, local authority respondents tended to be more likely to agree while letting agent respondents tended to be more likely to disagree or not know.

The pattern of responses to the 'yes/no' question was reflected in the focus of further comments. A number of respondents, drawn from those who answered yes, no, don't know or gave a mixed answer, felt that they needed first sight of a draft model tenancy agreement in order to assess the viability and then give a clear view on this Ground. This was the most frequently made comment by some degree.

Further comments included a small number of respondents being pleased with the introduction of a discretionary element or considering that the Ground should only be discretionary. Other issues or concerns raised by small numbers of respondents (both amongst those who agreed or disagreed) included:

• Will it be possible to address rent arrears-related issues that are not covered under Ground 6 using this Ground?
• It will be important to allow discretionary clauses within the model tenancy to reflect the diverse range of circumstances that may need to be covered.

Ground 9: Abandonment

Ground 9 covers abandonment and is one of the new grounds added at the second consultation. It is proposed as mandatory. Broadly, if a landlord has good reason for believing that their property is unoccupied and the tenant does not intend to occupy it as their home, they would be entitled to serve a Notice to Leave on the tenant. The Notice to Leave would require the tenant to inform the landlord in writing within four weeks whether or not they intend to occupy the property as their home. The Notice would also inform the tenant that, if it appears to the landlord at the end of the four-week notice period that the tenant does not intend to occupy the property, the landlord could refer a case immediately to the First-tier Tribunal. If the First-tier Tribunal was satisfied that the property has been abandoned, it would have to order possession.

Summary Findings

The majority of respondents (87%) agreed that Ground 9 would work effectively. Further comments tended to be brief, often welcoming the inclusion of the new ground and the parity with the legislation applying to the social rented sector.

Responses by respondent type are set out in Table 18 below.

Table 18: Question 6, Ground 9 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	3	2	0	0	5
Campaign Body or Group	5	3	0	1	9
Industry Body	9	0	0	1	10
Landlord	34	5	0	1	40
Legal Body or Firm	2	1	0	1	4
Letting Agent and/or Property Management	33	1	1	1	36
Local Authority	16	0	0	1	17
Tenant and/or Resident Group	3	0	0	0	3
Union or Political Party	2	1	0	0	3
Other	3	0	0	1	4
Total Organisations	(110)	(13)	(1)	(7)	(131)
Individuals	143	24	0	8	175
Total (excl. campaigns)	253	37	1	15	306
Percentage (excl. campaigns)	83%	12%	0%	5%	100%
SAL form based campaign	65	0	0	0	65
Letting Agent Campaign	25	0	0	0	25
TOTAL	343	37	1	15	396
% of those answering the question	87%	9%	0%	4%	100%

The majority of respondents (87% of those answering) agreed that Ground 9 would work effectively, including the majority of standard respondents (83% of those answering) and those supporting the SAL form-based campaign and the letting agent campaign. The majority of standard respondents of all types agreed.

Further comments tended to be brief, with those agreeing often welcoming the inclusion of the new ground and the parity with the legislation applying to the social rented sector.

The most frequently made comments by those disagreeing were that the four-week notice period proposed is not long enough and that the Ground should be discretionary. An alternative point of view was that this Ground should not need to be referred to the First-tier Tribunal at all.

As at other grounds, the importance of clarity, including around the types of evidence which can be presented to demonstrate that a property has been abandoned, was raised by small numbers of those agreeing and disagreeing that the Ground would work effectively. Specific areas in which respondents sought clarification or further information included whether the Notice Leave could be for as long as 12 weeks and the timescales from making a referral to the landlord obtaining vacant possession. It was suggested that it will be important for the First-tier Tribunal to be able to act quickly and efficiently.

Ground 10: The property was let to the tenant because they were employed by the landlord, and the tenant is no longer employed by the landlord

Ground 10 covers a property which was let to the tenant because they were employed by the landlord but the tenant is no longer employed by the landlord. The evidence that could be used to demonstrate this Ground will be covered in the Scottish Government's proposed guidance for the First-tier Tribunal but could include an employment contract.

Summary Findings

The majority of respondents (84%) agreed that Ground 10 would work effectively. Further comments were very limited and most frequently simply welcomed the Ground's inclusion or suggested the Ground seemed reasonable.

Responses by respondent type are set out in Table 19 below.

Table 19: Question 6, Ground 10 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	3	1	1	0	5
Campaign Body or Group	5	3	0	1	9
Industry Body	8	0	0	2	10
Landlord	31	0	0	6	37
Legal Body or Firm	4	0	0	0	4
Letting Agent and/or Property Management	31	0	1	4	36
Local Authority	17	0	0	0	17
Tenant and/or Resident Group	2	1	0	0	3
Union or Political Party	2	1	0	0	3
Other	1	0	0	3	4
Total Organisations	(104)	(6)	(2)	(16)	(128)
Individual	137	14		26	177
Total (excl. campaigns)	241	20	2	42	305
Percentage (excl. campaigns)	79%	7%	1%	14%	100%
SAL form-based campaign	65	0	0	0	65
Letting Agent campaign	25	0	0	0	25
TOTAL	331	20	2	42	395
% of those answering the question	84%	5%	1%	11%	100%

The majority of respondents (84% of those answering) agreed that Ground 10 would work effectively, including the majority of standard respondents (79% of those answering) and those supporting the SAL form-based campaign and the letting agent campaign. The majority of standard respondents of all types agreed.

Further comments were very limited and those who agreed with Ground 10 most frequently simply welcomed the Ground's inclusion or suggested the Ground seemed reasonable.

Those who disagreed were sometimes of the view that the Ground should be discretionary or that the tenant should have the right to continue living in the property if they so wish.

Ground 11: The property is normally needed to house a full-time religious worker of a religious denomination, and is required for this purpose

Ground 11 covers a property normally needed to house a full-time religious worker of a religious denomination, and which is required for this purpose. The landlord would need to demonstrate that a full-time religious worker requires the property for work purposes. This Ground would be mandatory.

Summary Findings

The majority of respondents (76%) agreed that Ground 11 would work effectively. Although further comments tended to be brief, a frequently raised issue was that the Ground should be expanded to cover other workers or employees of landlords.

Responses by respondent type are set out in Table 20 below.

Table 20: Question 6, Ground 11 - responses by respondent type

Type of respondent	Yes	No	Mixed view	Don't know	TOTAL
Advice, Information & Ombudsman Services	4	1	0	0	5
Campaign Body or Group	6	2	0	1	9
Industry Body	9	0	0	1	10
Landlord	28	5	0	5	38
Legal Body or Firm	4	0	0	0	4
Letting Agent and/or Property Management	29	2	1	2	34
Local Authority	16	0	0	1	17
Tenant and/or Resident Group	1	2	0	0	3
Union or Political Party	2	1	0	0	3
Other	2	1	0	2	5
Total Organisations	(101)	(14)	(1)	(12)	(128)
Individuals	107	28	3	38	176
Total (excl. campaigns)	208	42	4	50	304
Percentage (excl. campaigns)	68%	14%	1%	16%	100%
SAL form-based campaign	65	0	0	0	65
Letting Agent campaign	25	0	0	0	25
TOTAL	298	42	4	50	394
% of those answering the question	76%	11%	1%	13%	100%

The majority of respondents (76% of those answering) agreed that Ground 11 would work effectively, including the majority of standard respondents (68% of those answering) and those supporting the SAL form-based campaign and the letting agent campaign. Tenant group respondents were the only type of respondents in which the majority did not agree.

Although further comments tended to be brief, the most frequently raised issue was that the Ground should be expanded to cover other workers or employees, with examples given including farm workers or school caretakers. There was a concern that if this is not the case, some landlords will not make vacant properties available for occupation in case they are needed in the future. Both those agreeing and disagreeing raised this issue.

A small number of religious organisations raised specific issues, including that if the term 'full-time religious worker' only refers to those who have the employment status of a 'worker' (as defined by employment law) it excludes a large number of church ministers in denominations that regard the minister as an office holder rather than an employee.

Grounds-related themes

As noted earlier, there were certain key themes to emerge from the comments made at each of the separate grounds and in some additional or further comments made. These were that:

• Some respondents suggested it was difficult to comment on how effective each of the Grounds would be without having further information about how key parts of the proposed regime will function. Particular reference was made to the circumstances under which a referral to the First-tier Tribunal would or would not be required and what the timescales would be from referral, to the case being considered, to an order being granted, to vacant possession being obtained.
• The need for definitions to be clear and precise and for guidance to give all parties a detailed and consistent understanding of how the Grounds and the First-tier Tribunal will operate was a frequently raised issue across all of the Grounds. Similar comments were made about the model tenancy agreement.
• Some respondents were of the view that most if not all Grounds should be discretionary. This included those supporting the Living Rent petition who suggested that every ground for eviction should be discretionary and subject to a test of reasonableness. There was also a view that it is not reasonable for someone to lose their home without the involvement of a Court or Tribunal and that the Court or Tribunal should be permitted to take all relevant circumstances into account when coming to a decision.
• There were frequent concerns about the reasonableness and practicality of expecting a landlord to contact a former tenant and offer them a new tenancy or of expecting landlords to cover removal expenses if a tenant was being required to leave.
• Others had concerns about the onus being placed on the tenant to take a case to the First-tier Tribunal and whether that was a reasonable expectation. The issue of who would monitor whether landlords were complying with the new tenancy regime was also raised frequently.