New legislation introduced today by the Housing (Scotland) Act 2010 should help stamp out bad practice by many social landlords and bring to an end the draconian practice used by many of holding decrees like Swords of Damocles over the heads of tenants.
S153 and 155 of the 2010 Act, which amend the Housing (Scotland) Act 2001, should also make it more difficult for social landlords to evict tenants for rent arrears.
Section 153 introduces a new section 16(5A) and (5B) into the 2001 Act, which will mean that where court orders are now granted in relation to Scottish Secure Tenancies on grounds that include rent arrears, the date specified in the order for recovery will no longer be the date the tenancy ends. Instead tenancies will now cease on the date that recovery is made, ensuring technical evictions will no longer be required where agreements are reached and no new tenancy agreements will need to be signed.
The new amendments also require the courts to specify a maximum period within which the landlord must use the court order, which cannot exceed 6 month.
Section 155 does for Scottish Secure Tenants what the Home Owner and Debtor Protection (Scotland) Act 2010 done for home owners. It introduces new obligations in the form of Pre-Action Requirements (PARs) on Councils and Housing Associations which they must comply with before they can serve a notice of intention to raise proceedings. These PARs will only apply in rent arrear cases and landlords will be expected to comply with Scottish Government Guidance (http://www.scotland.gov.uk/Resource/0039/00395195.pdf).
The PARs are very similar to those for homeowners in that they place heavy emphasis on tenants being provided clear information, directed towards advice and where they are attempting to seek agreements for reasonable efforts to be made by landlords to enter agreements. Landlords are also encouraged not to initiate legal action where applications are being made for housing benefit and to provide tenants with assistance in making such applications.
One of the most interesting topics in the Guidance relates to sequestrations, where landlords are encouraged to consider where it is appropriate for them to raise actions for eviction where tenants have become bankrupt. Although sequestration in itself does not stop eviction, the point is made that raising actions for eviction may be construed as an attempt to obtain unfair preference and arguably should be avoided.
The Scottish Federation of Housing Associations have claimed the new laws are unnecessary and will not result in less evictions, but this ignores the point that when the credit crunch began the political focus was on preventing home owners losing their homes, despite the fact a tenant was twice as likely to have a decree made against him/her. Traditionally, the plight of tenants has been neglected and the fact these provisions took over 18 months to be introduced when the equivalent for home owners came into force in 2010 emphasises that point. There may not be fewer evictions, but the purpose of the provisions is also to improve practices in dealing with rent arrears.
Where the practices of social landlord are as unimpeachable as they claim, they will have nothing to worry about, but where they are not the Sword of Damocles that some of them held over the heads of their tenants for years, may now drop on them.