Opinion: The unaddressed issue in residential tenancies

Now that the private residential letting market is estimated to account for around 15% of the Scottish market, it is a political football: the number of people in the sector affected by the bill has increased and security of possession, as well as good living conditions, are crucial. These are peoples’ homes.

It’s estimated that around 340,000 Scottish households live in a home owned by a private landlord. It’s an area of law that has seen repeated state intervention since the First World War. The issues involved are in tension and the balance to be struck depends on your value set. The interests of occupier and owner must always be antagonistic. It’s a political, moral, and economic question. The pendulum has swung back and forth. It’s inevitable that each swing will bring with it unintended consequences.

The issues in tension

Tenants need security and a safe place to live at a price they can afford. Landlords need income sufficient to maintain standards and their capital. That’s the antagonism. Capital maintenance also depends on the time taken to get vacant possession and the level of certainty that you will.

The current form of tenancy, a radical change, came in on 1st December 2017. It provided that all joint tenants give notice to end the tenancy together. That required all tenants to agree on the notice and thereby gave each tenant a veto. The point also affects joint landlords, but they are rare.

Couples

The problem was harshly exposed during the pandemic, where partners that perhaps wished to leave their home were forced to live together. Ministers have since accepted that more thought should have been given to the issue.

Now that we are free from Covid restrictions, if your partner will not give a joint notice then an individual cannot leave, a significant issue in an abusive relationship. The only option is to stay and potentially put yourself at risk, or leave and subsidise the partner you are trying to leave. Currently, even if aware of potential abuse in a relationship, your landlord is not obliged to help. Any action for rent arrears could bring the tenancy to an end but it leaves one spouse with a right to relief for half the rent from the co-tenant.

Students

So much is well known but it’s not the end of the problem. Consider the position of students, with Edinburgh being one of the top university destinations in the UK.

Foreign students are particularly vulnerable as home may be a continent away. They may have no local network and very little money. Consider the dynamic where foreign students share with locals. A UK student who might choose to go home during the summer who is sharing with a foreign student may be forced to pay rent during the summer. A student at the end of their course may be trapped by co-tenants looking to stay at the property. This need not be sinister. It could be the product of conflict of interest between co-tenants.

The law offers no solution. There is perhaps a marginal protection for landlords, although less now that rent increases of continuing tenancies are controlled. However, it is hugely concerning for the trapped tenant and could be seen as in practice allowing discrimination to minority groups.

Medically vulnerable tenants

The issue of joint tenancies could also discriminate against people with disabilities. In the instance of a damp problem generating asthma and eczema, both disabilities, but only in the sensitive tenant out of, say, three. A life-threatening damp problem is surely a breach of the tenantable standard but the asthmatic tenant cannot leave without the consent of the others. New tenancies have seen double digit rent inflation which allows the landlord to escape his responsibility (although on a lower rent).

What can asthmatics do? The law is unclear as it often is where statutory rules collide with the common law. They might be able to avoid paying rent on the basis of the damp, on the mutuality principle. They might be able to rescind on the basis of material breach. They certainly can sue for damages for personal injury but any loss will be modest if they have moved out (as they have a duty to minimise their loss). The irony is that the common law tells you that there is a duty to leave, and statutory law apparently forces you to stay.

Reform is urgently required, not only for couples but for students and people with disabilities. Just as ministers now accept that domestic abuse was not properly considered at the beginning of the pandemic, it is clear that the discriminatory effect of the joint notice was not considered when private residential tenancies were created. There will likely be further amendments to the Bill due to current changes in the cabinet. Let’s hope so.

John Stirling is a partner and Conner McConnell is an associate at Gillespie Macandrew