Residential Tenancy Eviction Update: Section 11, Homelessness (Scotland) Act 2003 2/3/09
On 1 April 2009, new provisions of the Homelessness (Scotland) Act 2003 will come into force, placing new duties on all residential landlords and mortgage lenders in Scotland. This note will consider the duty on residential landlords, although the duties on mortgage lenders are the same.
The purpose of these provisions is to require the Landlord to give the Local Authority early notice of households which are at risk of homelessness due to eviction.
Notice to Local Authorities of Proceedings for Possession:
From 1 April 2009, a Landlord is required to notify the Local Authority of any new court proceedings raised seeking recovery of possession of a dwelling house and eviction of a residential tenant. Notice will always be required from the Landlord, regardless of the type of tenancy or property involved, and regardless of the nature of the eviction proceedings raised.
The notice must be given in statutory form and is to contain specific and comprehensive information about the eviction proceedings which have been raised. As the form is a legal requirement, the Scottish Government state in its guidance note that data protection rules regarding disclosure of tenants’ information do not apply for these purposes.
As regards timing of the notices, the Act states that notice is to be given when court action is "raised". Our view is that best practice would be to send the Notice to the Local Authority at the same time as the Summons is sent to court for Warranting.
Consequence of failure to notify
Section 11 does not provide any direct consequence for failure to notify the Local Authority. However, there may be indirect consequences for a failure to notify.
The Scottish Government has published guidance notes which suggest that the Local Authority may take a failure to give proper notice as evidence that Landlord is not a fit and proper person to let property. The Local Authority must be satisfied that a person is ‘fit and proper’ before they can be registered as a private Landlord under the Antisocial Behaviour etc (Scotland) Act 2004.
Failure to give notice will also be a breach of the Scottish Core Standards for Accredited Landlords, which may also affect a Landlord’s membership of both local and national Landlord Accreditation Schemes.
Comment
The duty to notify the Local Authority adds another burden for the Landlord in the already complex process of evicting a residential tenant. It is not clear how Local Authorities will police the duty to notify or what use they will make of information received. However there are real risks to the Landlord if the notice is not given correctly.
Further information
If you have any questions or concerns arising from this note please contact Fiona Stephen, Kirsty Slee or Edward Gratwick from the Property Litigation team or your usual contact at Anderson Strathern.
This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.
