Chamber and committees

I will not move the amendment. I hope that I can discuss the matter further with the Scottish Government.

Amendment 107 not moved.

Section 36 agreed to.

Section 37—Assured tenancies: pre-action protocol

I have lodged amendment 111 to give a time limit to the proposed changes to the mandatory and discretionary eviction grounds under sections 33 to 35 of the bill, which will amend the housing legislation that we have been discussing. The amendment would require the Government to introduce its new housing bill by 31 July 2024, thereby allowing it to respond to the effects that the changes that it is bringing in will have on the lettings market.

I know that the Government will find it hard to accept putting a time limit on that, but it is suggesting a fundamental and retrospective change to existing law. To my mind, it is doing so without full consultation, without really speaking to all those whom it should speak to and without listening to people on both sides—that is, landlords and tenants—in relation to the changes.

I am sure that the way in which committee members will vote on the amendment will be driven by their wish to make good and watertight law. Therefore, to my mind, a sunset clause should find their favour. After all, that would ensure that a proportionate response to the pandemic is not allowed to be carried forward beyond the pandemic.

Before I finish, I highlight that Mark Griffin’s amendment 110 has merit. I would go further than it proposes—I would like it to be amended to include a note of all types of tenanted properties over the period. The Government will say that it is not possible to collect that information but, of course, it is possible—you need only speak to councils, which must have a register of landlords and their properties. You can easily find out how that changes on a yearly basis. As Mr Swinney will know, landlords pay a fee to councils to be on that register. Therefore, checking and keeping on top of that should be simple. We would then be able to see the effect of the changes.

There are amendments in the group that cover the three acts, so I propose to give a description of what I see as the problem with them and then to concentrate on the Private Housing Tenancies (Scotland) Act 2016. I will not speak to the other amendments, which, convener, I am sure that you will be delighted about, as will be the rest of the committee.

Over the past years, we have seen a move towards the protection of tenants, which I believe should be welcomed. The difficulty has been finding the balance between landlord and tenant and ensuring that the legislation is equitable. The 2016 act was regarded as a tectonic shift in that regard. Tenants’ rights have become more defined and their position has become more protected. However, it is clear that not all private landlords have welcomed the changes. Those who did, did so on the basis that the act contained some of the mandatory and discretionary grounds for ending a tenancy that we had seen previously.

That will change under the bill. Worrying research that was recently published by Propertymark says that there has been a 50 per cent reduction in the number of rented properties between 2019 and 2022. That climate has been directly attributed to the 2016 act. Fewer landlords mean fewer properties, and that results in increased rent and increased pressure on social housing. We all should be concerned.

During the pandemic, everyone adapted to working and living in what was, after all, a very hostile environment and to the need to limit the spread of what was, before vaccinations, a virus that could and did pose a threat to life. It was simple and very right to make the mandatory grounds for eviction discretionary. No one could support the eviction of tenants when the virus was as virulent as it was. The additional compensatory loans that were made available by the Government to tenants and landlords to help tenants to pay their rent was welcomed by both tenants and landlords. That is not the position that they are in now.

Before we consider the bill, I want to look very briefly at the provision of housing in Scotland. We all agree that there is a chronic shortage of all types of housing. We need more housing, and there will not be an MSP in this meeting who does not support greater provision. The private sector has a role in providing that: there are about 360,000 privately rented houses in Scotland, which is about 14 per cent of the total housing stock. It is impossible to define who owns those houses. It is a complete mixture and includes buy-to-let landlords; families that have relocated due to work; companies and employers that provide accommodation as part of their employment contracts, such as farmers and churches; and people who have invested in their future retirement home. I could go on forever and still not produce an exhaustive list.

It is clear that the takeaway message is that Scotland needs private housing to fill in the gaps in housing provision. To ensure that we continue to have that invaluable resource, we must ensure that the rights of tenants and landlords balance. If we favour one over the other, I am afraid that we will distort the provision of use and the provision of housing.

From my background knowledge of the market, and from having spoken recently to landlords, their agents and tenants, I believe that part 4 of the bill, which makes all mandatory grounds for eviction discretionary, tips the balance too much in favour of the tenant. Although that approach was acceptable and right during the pandemic, which was a public health emergency, I do not believe that continuing with it beyond then is justified.

I want to make some general comments on the mandatory grounds for eviction in the three housing acts that part 4 of the bill amends. The majority of those grounds exist to ensure that a property can be reclaimed by the landlord promptly when there has been a serious and clear breach of the tenancy, or the property is required for another reason. Making every ground for eviction discretionary will slow down the process and ensure that every case goes to the First-tier Tribunal for Scotland. “So what?”, you might ask. Well, prior to the pandemic, some landlords were having to wait up to eight months for a tribunal hearing. Making every eviction ground discretionary will add to delays and further increase the backlog.

In the past, the Government has made much of listening and consulting, but the changes in question have not been examined, and if they had been, they would have been best addressed in a housing bill, which I would also favour. That would have allowed them to have been more fully scrutinised and market tested, which they have not been. I believe that that is fundamental.

The bill makes changes to the Private Housing (Tenancies) (Scotland) Act 2016. Before I turn to my amendments that relate specifically to that act, I have sought to address fundamental problems with the bill through the following amendments: amendment 82 seeks to remove section 33, which relates to the 2016 act; amendment 93 seeks to remove section 34, which makes changes to the Housing (Scotland) Act 1988; and amendment 106 seeks to remove all changes to the Rent (Scotland) Act 1984. It would be my preference for those amendments to be agreed to. However, I have also lodged amendment 111, which is a stand-alone amendment that would not affect the changes that are proposed in the bill. Amendment 111 would introduce a sunset provision in relation to sections 33, 34 and 35. I will talk about that briefly later on.

I turn to my amendments that address the changes that the bill makes to the Private Housing (Tenancies) (Scotland) Act 2016. Amendments 70 and 71 would allow the landlord and the lender, respectively, to sell the property with vacant possession. If you were to sell a property with vacant possession, you would get full market value. Without vacant possession, you would not get full market value. If the position is maintained that possession cannot be given in such circumstances, we will be promoting a buy-to-let arrangement, and first-time buyers who might want to live in the house will be put off, because they will not be able to get in.

Amendment 72 would allow the landlord to take possession to refurbish his property when it is empty. If a landlord cannot get vacant possession of a property to refurbish it, I sincerely doubt that the Government will be able to make all properties energy performance certificate compliant within the desired timeframe. I remind members that, for an older house to achieve an EPC, it will probably be necessary to strip out all the walls and floors and to remove areas of the roof in order to provide lagging. That cannot be done room by room.

Amendment 73 would allow the landlord to take possession to live in their own property. I cannot believe that anyone would want to deny a landlord their right to live in their own house. That cannot be anything but a right. Where will the landlord live if he cannot live in his own house and has to wait for the First-tier Tribunal to give him that right? Council housing will not be available to people who own their own houses. Section 33 of the bill creates a further problem in that respect.

Amendment 74 would allow a change of use of the property. Such a change of use would have to receive planning permission. That process would be the filter—in other words, the local authority would not grant planning permission if there was pressure on housing. I believe that that should remain a mandatory ground for eviction.

Amendment 75 would allow properties to continue to be required for religious purposes. It is quite a niche reason; it covers church houses. If manses are not available, especially in rural areas, I suspect that churches and local congregations will suffer, because they will not be able to have a minister.

Amendment 76 would introduce a new discretionary ground for situations in which the landlord requires a property for an employee. That is important in rural areas, where housing is in short supply—employers have housing that they need for an employee but cannot get.

Amendment 77 would allow any houses that have been offered as part of a contract to be given vacant possession should that contract terminate. That is important. NHS Highland is looking at that, as far as its staff is concerned, to try to attract people to the Highlands, but if it cannot get possession of the houses, it will not be able to do that.

Amendment 78 is interesting, because it would allow a property to be got back by the landlord if it is empty. If a property is empty, why would anyone want to remove that as a mandatory ground for eviction? It is not good for a property to remain empty, especially if that is complicated by going to a First-tier Tribunal, which could take up to a year. Neither is that good for local taxation.

I lodged amendment 79, which concerns rent arrears for three or more consecutive months, because, given that it takes so long to go through at a First-tier Tribunal, those could rack up for more than a year.

Amendment 80 would allow possession of a property if the tenant has been engaged in criminal behaviour, given that, for example, a landlord might not be able to get their house back if it has been used for criminal activities that attract a non-custodial sentence. Relevant examples in rural areas are of houses having been turned into cannabis farms.

Amendment 81 would mean that antisocial behaviour is not treated as a discretionary ground.

Those are all the amendments that I want to talk to specifically, convener, although I could talk to all the amendments on the Housing (Scotland) Act 1988 and the Rent (Scotland) Act 1984. Incidentally, the 1984 act is interesting and quite niche; the youngest of the tenancies that were generated under the act would be 32 years old, and I am not sure that there are many of those. However, as we have not done any research on it, we do not know.

Before I close, I will talk briefly on amendments 107 and 108, which are probing amendments. I agree with the Scottish Property Federation that there are merits in introducing pre-action protocols. They have great advantages in creating a supportive process for tenants, and we should encourage that, to continue to get them back on track. However, those merits are lost should the grounds for eviction become discretionary. If the landlord not only has to do the pre-action protocols but proceeds to a secondary, discretionary process through a tribunal, that could create a very drawn-out process. I have therefore lodged amendments 107 and 108 not because I want to stop the provisions but because I want to hear how the Government will address the problems that I perceive.

I move amendment 70.

I am heartened to hear that, because, although cross-party groups can work independently, there are areas of ground on which they can work together. I am glad that one of the conveners is working towards that.

I assume that Collette is not making it a requirement of approval that the CPG acts on her idea.

I do not have a question on the procedure, but can I ask a question of the minister?

When we took evidence from the minister at stage 1, he said that he would lodge an appropriate amendment at stage 2, which he has not done. I would like to understand his rationale for not doing what he said he was going to do. I am sure that there is a perfectly good reason, but I would like him to explain it to us.

I am content for that to be on the record and that no argument was required.

Sections 1 to 4 agreed to.

Long title agreed to.

Colin, you mentioned working across other cross-party groups. Do you foresee that as being by correspondence only or do you foresee having joint meetings on certain areas so that people can share and build on the experiences that they bring to those meetings?

We know from when we went to Shetland—it was possibly Orkney—that the mental health professionals are supposed to travel up on a Tuesday, but that does not always happen and sometimes there are delays of two or three weeks. That is a serious issue. I am not aware of the health boards having carried out impact assessments of the failure to provide healthcare. It would be helpful to have that information.

My next question is a little more parochial. Raasay, for example, relies on the good will of CalMac Ferries to deliver parcels: they are dropped off at the terminal when the ferry comes over. CalMac is stopping that service because it says that it costs £250,000 a year to run. I am not sure where that figure came from—a man or lady in a white van would not cost £250,000 to run such a service. Getting Amazon parcels or shopping delivered to Raasay is a real problem, although that happens on other islands. CalMac has been very iffy about the issue. I have looked at the CalMac impact assessment and it realises my greatest fear: it is a tick-box exercise that cannot be justified. Are you convinced more generally that island impact assessments for changes in services are being done properly? If you are unable to give an answer now, could you look at a few assessments and respond to the committee to confirm whether they are being done properly? I fear that they are not.