Tribunal on trial: 18 months of the Scottish Housing and Property Chamber
Introduction
On 1 December 2017 the First-tier Tribunal for Scotland Housing and Property Chamber took over from the sheriff court in dealing with all private rented sector (PRS) disputes including evictions, debt recovery actions, cases against landlords who’ve failed to comply with deposit scheme regulations and letting agents who’ve failed to comply with their code of practice.
CAROLINE ELGAR, policy manager at the Scottish Association of Landlords (SAL) gives an overview of how the tribunal has fared so far.
Time & process
The main concern expressed by our members in the first year was the time it was taking to progress cases: The number of cases received by the tribunal was four times the volume they expected, based on the number previously going through the sheriff court, and this resulted in delays. It now seems timescales are improving as the tribunal recruit and train more administrative staff to assist with processing the higher volume of cases.
For eviction cases where the application paperwork is all correct and complete we have recently seen eviction orders being granted within 8 weeks of the landlord applying.
The main reason for applications being delayed now, is that the paperwork is incomplete or there are errors/anomalies in the application. All applications to the tribunal are thoroughly checked when they are received to ensure that the landlord is entitled to raise the action and has followed the correct procedures prior to making the application.
For eviction actions termination notices are now checked to ensure the wording and dates are correct and tenancy agreements will be checked to ensure they allow the landlord to terminate the tenancy on the ground being used. This all aims to make the process smooth and efficient.
Evictions
We have seen most eviction order applications granted if the correct procedures have been followed. The majority of published cases have been short assured tenancies being ended using the “no fault” procedure and evictions for all tenancy types because of rent arrears.
There have also been a number of published cases on discretionary eviction grounds, the vast majority of which have been granted by the tribunal.
There have been surprisingly few evictions sought on the grounds of anti-social behaviour but all those we’ve seen have been granted.
Civil actions
Most civil action cases are for recovery of rent arrears although the tribunal can be used for any civil dispute between landlords and tenants. This therefore includes claims for the cost of remedial works at the end of a tenancy, as well as compensation claims for losses incurred as a result of negligence.
There is no limit to the amount the tribunal can order a party to pay and the largest payment order so far was against a tenant for £39,520 of rent arrears.
Deposit cases
Where a tenant believes their landlord has not complied with the deposit scheme requirements, they can make an application to the tribunal during the tenancy or up to 3 months after the tenancy has ended.
In most cases the tribunal has found the regulations have been breached. The most severe punishment of three times the deposit has tended to be reserved for cases where there has been a persistent, deliberate, long term and ongoing failure to comply.
In cases where the failure to comply has been a genuine human error that has been quickly and proactively rectified by the landlord then the award is usually equal to the value of the deposit.
Letting agent enforcement orders
There is now a steady stream of agents being taken to the tribunal for failing to comply with the letting agent code of practice which came into force on 31 January 2018. Most are brought by landlord clients although tenants can also apply.
In most of the published cases the agent has been issued with an enforcement order requiring them to take positive action to resolve the breach and in some cases also pay compensation to the applicant.
Summary
Whist the scrutiny of applications by the tribunal is meaning that landlords have to be more careful than ever to ensure their paperwork is in order, there are a number of benefits of the new system:
There is no charge to apply to the tribunal and hearings are conducted in a way which better enables landlords and tenants to represent themselves if they wish to do so.
This represents a significant saving in legal costs over the sheriff court system where most parties were represented by a solicitor.
As with the previous system the tribunal is responsible only for making the judicial decision, not the enforcement of those decisions. That, in Scotland, is the job of sheriff officers but in most cases their fees are the only expense the landlord will incur during the process.
Tenants are also making use of this easier and cheaper access to justice. There has been a significant increase in the number of tenants taking action against their landlord for failing to lodge deposits. For landlords who’ve been following good practice this should be welcome news – those who have not followed the system are finally being brought to task with the worst offenders being fined the maximum three times the deposit.
More information
This paper – originally published on the SAL website – has provided an overview of the Scottish system and how it is presently working for landlords.
The NRLA will be working alongside SAL in more depth to look at how change has impacted upon landlords and the Private Rented Sector.
In the meantime for those landlords who are interested in finding out more, SAL has produced a factsheet. This has more information on the Scottish First-tier tribunal system for landlords. To request the factsheet please email SAL via [email protected]. Please quote “NRLA” in your email.
