The ongoing COVID-19 pandemic has been a challenge for everyone. However as lockdowns lift and vaccines begin to take effect, the Scottish Government has begun to walk back some changes in law made to accommodate the impact of the pandemic through the: Coronavirus (Extension and Expiry) (Scotland) Act 2021.

What does the Act Change?

The Act repeals a number of provisions contained in Coronavirus legislation passed in 2020 and, in particular, reverses some of the leniency around FOI compliance.

Under changes to the law made

It was announced last week that New Zealand’s privacy commissioner, John Edwards, has been named as the UK government’s preferred candidate for the next information commissioner.

Why is this significant? Well, the Government has announced that with a new Information Commissioner will come a shake-up of current data rules. On 1st January 2021, the official “transition period” governing the UK’s departure from the EU ended. With the UK set to take more steps to depart from the General Data Protection Regulation (GDPR), Digital Secretary, Oliver

The new Heat Networks (Scotland) Act 2021 (the “Act”) is not without its controversies, with correspondence released under Freedom of Information this summer showing that the Queen had lobbied the Scottish Government in order to seek changes to the Act.

But, what does this legislation mean for RSLs – both those operate heat networks and those who currently have no plans to do so? This blog will give an overview of upcoming changes that RSLs should monitor.

What is a heat network?

Heat networks

As RSLs will be aware, LIBOR will cease to be published from 31 December 2021 and those who have Loan Agreements where the interest rate is, or may be, set by reference to LIBOR will have to decide how the interest they pay on these loans will be calculated when it is no longer available.

Whilst Banks vary with regard to what they will offer, the possible alternatives suggested by the Bank of England are:

1. SONIA (Sterling Overnight Index Average) calculated by reference to actual

On 1 May 2019, the Housing (Scotland) Act 2001 was amended to provide Registered Social Landlords (RSLs) with a mandatory ground of eviction in certain circumstances where a tenant is convicted of a crime. 

Section 16 (2)(aa) of the 2001 Act establishes a two part test for RSLs to have a mandatory ground for eviction:

• That a tenant, joint tenant, subtenant, or a person residing, lodging or visiting the property, is convicted of an offence punishable by imprisonment committed in, or in the locality of, the

By now, most Registered Social Landlords (RSLs) in Scotland will have dealt with a Freedom of Information (FOI) request. It may be a more regular occurrence for some RSLs than others. Regardless if you receive one or one hundred FOI requests, each request must be dealt with in accordance with the rules set out in Freedom of Information (Scotland) Act 2002 (FOISA). To assist RSLs in following the correct process, we have created a handy checklist to which you can refer to which provides brief

To help manage the COVID-19 pandemic, the Scottish Parliament passed two Bills in 2020. These became the Coronavirus (Scotland) Act 2020 and the Coronavirus (No.2) (Scotland) Act 2020. We previously blogged about the impact each of these Acts would have on Scottish Residential Tenancies.

On 18^th June 2021, the Scottish Parliament introduced a new Bill: The Coronavirus (Extension and Expiry) (Scotland) Bill. If enacted, the legislation will amend the existing Acts, which were due to expire on 30^th September 2021. The legislation will

Since December 2020, the enforcement of eviction orders has been prohibited unless the order is based on the tenant’s antisocial behaviour or criminal activity. The ban applies in all areas which are within Tier 3 and Tier 4 of the Scottish “lockdown” levels.

The majority of mainland Scotland moved to Tier 2 on 17 May 2021 (except for Glasgow City and Moray) and some island communities moved to Tier 1. As such, the ban on enforcement of eviction orders was lifted from 17 May 2021. 

The Coronavirus (Scotland) Act 2020 (“the 2020 Act”) contains emergency powers relating to coronavirus and health protection in Scotland. In exercising these powers the Scottish Government have introduced rules which have afforded additional protections to tenants by increasing the notice periods required before eviction action can start and banning the enforcement of eviction orders in certain circumstances.

Eviction ban update

Since December 2020, the enforcement of eviction orders has been prohibited unless the order is based on the tenant’s antisocial behaviour or criminal activity. The

In November 2019 no one could have predicted what a difficult year 2020 would prove to be. However a new report published by the Scottish Information Commissioner (SIC) highlights that RSLs are coping well with their new FOI obligations despite the challenges raised by COVID-19.

The Report contains a number of key figures, namely:

• 97% of RSLs and subsidiaries who responded were confident in their ability to respond to FOI requests.

• The majority of respondents confirmed that FOI had not contributed significantly to their workloads

In an earlier blog we set out the basics of how the transition from LIBOR to SONIA would be effected. The matter has become more pressing as since October 2020 Banks have been providing detailed drafting to document the proposed transition and it was announced on  5 March 2021 that LIBOR as currently calculated would no longer be available from 1 January 2022. We examine some key issues below:

Spread

Although other periods are possible, LIBOR has generally been offered to the sector for periods

The Sheriff Appeal Court has just issued a decision which will be of significance to RSLs throughout Scotland. It concerns the operation of the “streamlined” eviction process in terms of ground 2 in the Housing (Scotland) Act 2001 designed to be used when tenants are convicted of criminal offences committed in or near the rented property.

Since May 2019, 2019, the “reasonableness” test has been removed from this ground meaning that the court must grant an eviction where the ground is established. However the government

The Scottish Information Commissioner (SIC) has recently published one of the first decision notices on a RSL’s handling of a FOI request.

Whilst the decision notice (which can be viewed here) does not answer some of the bigger questions the sector has about their new FOI duties it does act as a reminder of some key aspects of FOI compliance. So, what can RSLs learn from this decision?

What was the decision about?

The decision concerned a failure to respond to a request for

We recently sent an update to confirm that evictions were being banned until 22 January 2021 - unless your Decree was granted on ground 2 and/or 7 of the Housing (Scotland) Act 2001, as amended. This is where Decree was for Antisocial Behaviour (ASB) and/or where there was a conviction.
 
It has now been announced that the existing ban will be extended until 31 March 2021. Like the previous ban it will not apply to Decrees for eviction which are granted on the ground of ASB or a conviction.

The Scottish Government announced that between 11 December 2020 and 22 January 2021, there is to be a full ban on evictions being carried out in Scotland. The ban will last for a period of six weeks and will apply to all evictions (except in cases of anti-social behaviour relating to Ground 2, Ground 7 or Ground 8 detailed in the Schedule 2 of the Housing (Scotland) Act 2001).

What does this mean?
No evictions on other grounds can proceed during the six-week period.
 
However, where

The Coronavirus (Scotland) Act 2020 (Eviction from Dwelling-houses) (Notice Periods) Modification Regulations 2020 are expected to come into force 3 October 2020. 

We previously blogged about the extension of notice periods introduced by the Coronavirus (Scotland) Act 2020. The link can be found here.

The purpose of these new Regulations is to reduce the extended notice periods for eviction grounds relating to antisocial behaviour and criminal convictions to 28 days in both the private and social rented sector.

The new proposed notice periods are:

• 4

A number of  RSL clients have been in touch with us recently to enquire whether there is a current ban on evictions in Scotland.

The extensive publicity suggesting that such a ban exists is misleading. There is no law in Scotland which prevents evictions taking place.

The most recent publicity has stemmed from the Scottish Government’s plans to consider extending the application of the extended notice periods beyond the original end date of 30 September 2020.

Currently the Coronavirus (Scotland) Act 2020 provides that our

As the Scottish Housing Market is set to re-open, guidance has been issued by the Scottish Government to ensure that this process is as safe as possible.  Whilst the requirement to maintain social distancing, regular hand washing, and the recommendation to wear a mask are still in effect, the following practical advice for the Social Rented Sector has been set out:

House Viewings

Before arranging any viewings, the RSL must determine if any members of the household are either shielding, or displaying symptoms of COVID-19

Registered Social Landlords (RSLs) may already be concerned about their ability to respond to requests within the statutory 20 working day timescale due to the possible implications of Covid-19. Will Covid-19 affect your FOISA deadlines?  In light of the continued spread of the virus, the Scottish Information Commissioner (SIC) has published a statement addressing the obligation on public authorities to comply with the timescales set out in the Freedom of Information (Scotland) Act 2002 (FOISA) and the Environmental Information (Scotland) Regulations 2004 (the EIRs).

On 1^st May 2019, the Housing (Scotland) Act 2001 was amended to provide Registered Social Landlords (RSLs) with a mandatory ground of eviction where a tenant is criminally convicted. However, almost one year later, there remains a cloud of judicial uncertainty surrounding these cases.

Section 16(2)(aa) of the 2001 Act establishes what is effectively a two-part test for RSLs to have a “mandatory” ground for eviction:

• That a tenant, joint tenant, subtenant, or a person residing, lodging or visiting the property, is convicted of

Freedom of Information (FOI) applied to RSLs as of 11^th November 2019 — but did you know that the Climate Change (Scotland) Act 2009 now also applies?

As you will be aware, RSLs are now defined as a Scottish public authority under the new FOI provisions. As the Climate Change (Scotland) Act 2009 applies to a Scottish public authority by way of the definition in the FOI Act of 2002, RSLs will now fall under the scope of the Climate Change Act. The Act

What are the letterhead requirements for companies and charities? Could you as an individual and/or the company/charity face possible prosecution and a fine of up to £1,000 with further fines of £100 per day being imposed?

Under the Companies Act 2006, a company registered with Companies House must include their company's registered name (as it appears on the company's certificate of incorporation) in all its business letters, order forms and websites, whether in hard copy or electronic, including:

• Notices and other official publications business

Charities may be aware that Office of the Scottish Charity Regulator (OSCR) are asking all charities to report Notifiable Events. Whilst there is no legal requirement to report an event, OSCR are keen to encourage charities to report to them when there has been a significant event which may or may not have a negative impact on an individual charity or the wider charity sector.

Types of notifiable events can be as follows:-

• Fraud and theft
• Significant financial loss
• Incidents of abuse or mistreatment of

In the current economic climate, contractor default is even more prevalent in the construction and engineering industries. Therefore, Registered Social Landlords (RSLs) should always look to protect their position when entering into construction contracts by taking active steps to guard against the risk of potential insolvency of contractors.  Parent Company Guarantees v Performance Bonds - What option is best for you?

This is usually done by the contractor entering into a parent company guarantee or a performance bond which acts as security for losses sustained

The European Commission has released its updated public procurement thresholds that applies to Registered Social Landlords (RSLs) from 1 January 2020. Every two years, the European Commission updates the financial thresholds at which the EU Directives apply.

The Public Contracts (Scotland) Regulations 2015 set out specific procedures for awarding contracts in excess of the threshold values. Generally, when the value of a contract exceeds the thresholds (see below), it is a mandatory requirement that you publish a notice in the Official Journal of the European

The Housing (Scotland) Act 2001 (2001 Act) allows the landlord of a Scottish Secure Tenancy to recover an abandoned property without the need for court proceedings. Section 17, 18 and 19 of the 2001 Act deal with this procedure.

The procedure can only be applied where the landlord has reasonable grounds for believing that:

• the house is unoccupied; and
• the tenant does not intend to occupy it.

To ascertain if this is the position the Registered Social Landlord (RSL) should carry out diligent inquiries and

When proprietors within a tenement instruct a repair by dint of a Scheme Decision made in terms of the Tenement Management Scheme (Schedule 1 to the Tenement (Scotland) Act 2004) any owner in such a tenement can, if they wish, arrange for the repair and then look to the other owners for a contribution to the cost.

In mixed tenure tenements where there are privately owned flats and units let in terms of affordable tenancies (social tenancies) a social landlord might find themselves in such

Grounds for Offering an SSST

There are presently 9 grounds on which a Registered Social Landlord may offer a prospective new tenant an SSST (a short Scottish secure tenancy). One of those grounds is that the property is to be let on a temporary basis to a person who is in receipt of a housing support service. This ground can only be relied on where none of the other grounds apply. It is also important to note that this ground cannot be relied on where

With the availability of websites such as Gumtree and Airbnb, we have seen a sharp rise in tenants engaging in unauthorised sub-letting.

Where the landlord of such properties is a Registered Social Landlord (RSL), the unauthorised sub-letting of a property for excessive sums of money (sometimes whilst the rental charge due to the RSL goes unaddressed!) goes against the principles of social housing.

The present legal position is that an RSL tenant can only sub-let the property with the prior written permission of the landlord.

With shared equity schemes, including Homestake and LiFT, now becoming increasingly popular some Registered Social Landlords (RSLs) and their subsidiaries who are Rural Housing Bodies, have applied a Rural Housing Burden (RHB) on their shared equity developments. How does shared equity and rural housing burdens work?

What is a Rural Housing Burden?

The official definition is: -

A perpetual personal right of pre-emption contained within the title deeds of a property in favour of a rural housing body which allows the rural housing body the

Joint and Several Liability - what does it mean?

If there are two or more joint tenants to a Scottish Secure Tenancy Agreement, they will be jointly and severally liable for all of that tenancy's contractual obligations. What this means for the landlord is that it can hold either one or all of the tenants responsible for any arrears. In effect, the Association, has a choice regarding which of the tenants to pursue. This can often be a practical decision. For example, if you

We previously blogged about data protection breaches under the General Data Protection Regulation (GDPR) and how to deal with the aftermath. Since then, the Information Commissioner's Office (ICO) has issued its first fine using the GDPR, which came into force in May 2018, and accompanying Data Protection Act 2018.

Under previous legislation, the maximum monetary penalty that could be imposed by the ICO was £500,000. Only Facebook and Equifax have been the recipients of fines at the maximum level, falling safely within the umbrella of

It is a frustrating situation for Registered Social Landlords (RSLs) when tenants become insolvent and any outstanding debt becomes irrecoverable. Below we answer some common questions around tenants signing trust deeds and sequestration.

Are we obliged to write off any debt? At what stage do we do so?

When a tenant enters into a trust deed, any tenancy debt is affected only if that trust deed proceeds to become protected. You should initially receive communication from a trustee advising that the debtor/tenant has entered into

The Private Housing (Tenancies) (Scotland) Act 2016 (Modification of Schedule 1) Regulations 2019

On 1st July 2019 the above regulations will come into force. These regulations modify the provisions of the 2016 Act whereby residential tenancies granted by charities to provide housing for veterans or temporary accommodation to care leavers cannot be classed as Private Residential Tenancies. This means that such tenancies will sit outside of the statutory regime.

The new regulations do not have retrospective effect. This means that tenancies granted by these organisations

From 1 February 2021 Registered Social Landlords (RSLs) will need to ensure that the fire and carbon monoxide detection systems in their residential properties meet the new 'tolerable standard'. The Scottish Government has introduced a loan scheme in order to assist RSLs implement the changes that may be required. For a further explanation of the new 'tolerable standard' please see our previous blog post.

The loan scheme is called: The Fire and Carbon Monoxide Detection Loan Scheme. Through this scheme, RSLs will be able

The Scottish Information Commissioner (SIC) has recently published two sets of guidance on Freedom of Information (FOI), Registered Social Landlords (RSLs) and the terms of the Order which brings RSLs under the FOI regime.

The guidance relates to:

• How Freedom of Information will apply to RSLs and their subsidiary companies; and
• Which RSL subsidiaries are covered by FOI?

RSLs should read the new guidance on Freedom of Information and be aware of the following key points:

• There will be a two-part test for determining

The Property Factors Scotland Act 2011 required all property factors to register on the newly formed Register of Property Factors. Failure to register is a criminal offence punishable by a fine or even imprisonment! Given the sanctions which exist it is important to be clear who is under an obligation to register. This is still proving a challenge for some entities providing property management services to residential schemes.

The legislation provides a definition of a property factor i.e. a person who, in the course of

Office equipment; repair services; boilers; stationary and much more are bought by Registered Social Landlords (RSLs) as a matter of course.

Sometimes it's simple for an RSL to buy things, other times it's more complex and subject to public procurement law. No matter what, information about what they are buying will be given to the RSL by the supplier.

Come 11 November 2019 this information will be covered by Freedom of Information (FOI). This will impact not only RSLs, but the people and companies that

Are you a Registered Social Landlord engaged in property factoring? Are your factoring practices robust and ready for upcoming changes to the Property Factor's Code of Conduct?

The Property Factors (Scotland) Act 2011 is 6 years old and created a statutory framework providing protections for homeowners who receive services from a property factor. As part of that framework, a Code of Conduct was introduced which sets minimum standards of practice for registered property factors in their business with homeowners.

The Scottish Government has been active

On 11 November 2019 all Scottish RSLs will become subject to Freedom of Information (FOI). This will give members of the public the right to request information that RSLs hold.

Whilst RSLs are currently required to respond to public requests for environmental information, the draft 'Order' published by the Scottish Government on 08 February will mean that RSLs (and in some cases their subsidiaries) need to provide a wide range of information if requested, subject to that Order being approved by parliament. This is

Registered Social Landlords (RSLs) are entitled to terminate a Scottish Secure Tenancy and recover the property where a tenant (or someone residing with or visiting them) has been convicted of a criminal offence. Provision for this is made in Ground 2 of Schedule 2 of the Housing (Scotland) Act 2001. What changes are coming into force regarding evicting criminal tenants in 2019?

There are currently two conditions which must be met before an RSL is entitled to serve a Notice of Proceedings and begin eviction

The Scottish Government is due to introduce new legislation regarding fire and smoke detectors in the aftermath of the Grenfell Tower tragedy. The Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019 is due to come into force on 1 February 2021 and will extend the 'tolerable standard' set out in section 86 of the 1987 Act.

The changes in the Order will apply not just to properties which are occupied by tenants, but all residential properties. Registered Social Landlords (RSLs) and owner

LIBOR (the London Inter-bank Offered Rate) is at the heart of private funding to the housing sector. Post-2022 however, banks will no longer be required to provide LIBOR quotations and thought needs to be given as to how that may affect Registered Social Landlords who have loans that continue beyond 2022 or indeed are taking out loans now.

Is there a proposed replacement for LIBOR?

The most likely replacement is the Sterling Overnight Interest Average (SONIA) administered by the Bank of England. SONIA is based

It is a well known principle that any construct must be built on solid foundations in order to stand the test of time. Well, the same can be said for raising an action for recovery of possession of a Scottish Secure Tenancy. In order for proceedings to be initiated the first step is to serve a Notice of Proceedings.

This prerequisite document essentially supports the action through legal proceedings in the courtroom and certainly is the initial bedrock of a pursuer?s position before a Statement

How can you recover factoring & common maintenance debts from owner-occupiers? A Notice of Potential Liability for Costs (NPLCs) can assist Registered Social Landlords and factors to recover money due by owner-occupiers for factoring and common maintenance debts.

Notice of Potential Liability for Costs

Introduced in 2004, the Notice can be used in relation to flats or houses. It does not solely relate to costs already incurred and can be lodged in relation to planned works where there is doubt regarding an owner's ability to

Background

In September 2016 the Office of National Statistics (ONS) announced that it was reclassifying Registered Social Landlords (RSLs) in Scotland as public non-financial bodies for the purposes of the national accounts. This was due to RSLs being subject to public sector control via the Scottish Housing Regulator's (SHR) powers over management, constitutional change and disposals of land. As a consequence of this reclassification, RSL debt would have to be counted as a public liability for the purposes of the nation's accounts. The ONS was

In December 2017 Scottish Government produced their third Consultation Paper on extending Freedom of Information (FOI) to the sector with a draft Order which made both Registered Social Landlords (RSL) and RSL subsidiaries subject to FOI when carrying out 'housing activities' as defined in the Housing (Scotland) Act 2010. Responses to that Consultation are set out here

The Scottish Federation of Housing Associations commissioned our firm to provide a technical analysis as part of its response. Links to that response and analysis are set out

The Occupiers Liability (Scotland) Act 1960 has given rise to a raft of case law recently. In essence, it sets out the level of care required to be demonstrated by the legal entity who occupies or controls land or premises to any third party who may access such land or premises. This requires the occupier to assess the dangers which exist given the location of such land or premises and to highlight or mitigate any wants and defects which are present.

The first thing to

The various changes to housing management law and practice, which are contained in Housing (Scotland) Act 2014, now have dates set for their introduction.

Almost 4 years after the Act received its Royal Assent, the Commencement Order for these changes has finally been published.

The Act will make changes to a variety of areas.

The changes to the rules on Short Scottish secure tenancies (especially when used as method to deal with antisocial behaviour), the use of criminal convictions as grounds for eviction and the

With less than a month to go before the implementation of the GDPR it is crucial that existing and future public contracts comply with the new legislation. What will change in respect of public contracts and the GDPR?

The Scottish Government has published a Policy Note on the impact the GDPR will have on public procurement and contracts. This blog will highlight the key features of the note alongside steps organisations should take to get their public contracts and procurement processes GDPR ready.

What is