 Good morning everyone. I welcome you to the 23rd meeting in 2015 of the Infrastructure and Capital Investment Committee. Everyone present is reminded to switch off mobile phones as they affect the broadcasting system. As meeting papers are provided in digital format, you may see tablets being used during the meeting. No apologies have been received. Agenda item number one is a decision on taking business in private. The committee is invited to consider and agree whether to take item five in private and whether any future discussions on the consideration of evidence and draft reports on the private housing tenancy Scotland bill should be taken in private at future meetings. Are we all agreed? We are agreed. Agenda item two is the private housing tenancy Scotland bill. At agenda item two, the committee will take oral evidence on the private housing tenancy Scotland bill from two panel of witnesses. The first panel of witnesses present are largely representing the interests of local authorities. Good morning. I welcome Tony Cain, policy manager and the Association of Local Authority Chief Housing Officers. Kenny Hecox, private rented services manager at the City of Edinburgh Council. Councillor Harry McGuigan, spokesperson for community wellbeing. Cillkey is brand policy manager community resourcing team slash housing at the convention of Scottish local authorities. Do any of the witnesses wish to make any short introductory remarks? I'm happy to go straight to questions. I would like to say, convener, that I thank you very much for bringing the time forward a little bit to accommodate myself. You may be saying when I leave, well that wasn't worth doing but we do have another important meeting on housing development group and the minister will be there and it's important that we share our views on that with the minister. I also jointly chair that meeting so if you let me get out by about quarter to 11 that would be helpful. My apologies. I'll always willing to accommodate the needs of witnesses where we can and we'll try to be as gentle as possible. Perhaps I could kick off in that case and ask in general terms do you think the proposals in the bill achieve the correct balance between improving security of tenure for tents and providing the appropriate safeguards for landlords, lenders and investors? Who would like to kick off? I think what we would be saying about the bill. We've commented on the bill a way back in May. We made some observations and in the main we were comfortable with the direction of drive of the bill. We wanted, like the Bill intends, to try and ensure that there is a balance between the interests of the investor in the private sector and the interests of those using that particular service. That balance has been out of kilter for quite a long time. We welcome serious consideration being given to how we can improve the balance and how we can make the two aspirations of the investor and aspirations of the people using that service how we can ensure that they are in tune as far as possible. We haven't been given an awful lot of time since the private sector, private tenancy sector's bill. I think it was the 7th of October that that first came to Parliament. We haven't had a chance to go around all of our local authorities in the four weeks since then, but we certainly will be doing that. We'll be presenting a paper in December 3 on the community wellbeing meeting, and we may come back with some proposals. There are some amendments to the bill, but I don't want to anticipate anything like that here at the moment. I think that what I would be saying in response to the question that you asked is that we do want to see a serious and comprehensive analysis of what is really going on and how we can best ensure that the incentives are still there for investment in private sector housing, because we do have to have that particular engagement from the investment side, but we are ensuring that good landlords are supported and that those landlords who are abusing the situation are dealt with in a way that will protect the services that their tenants should be getting. Thank you for that. Anyone else? I think that my answer would be rather shorter, but we know that the bill doesn't strike the right balance between the right to landlords and the right to tenants. We are of the view that a little more attention is needed to connect this particular piece of legislation with other elements of housing legislation, and more particularly you will see that we have picked out some issues around business failure and business change and the way they are managed and the way those costs are transferred to others under these arrangements. However, it represents a substantial improvement on the current position, broadly speaking, we are supportive of what the bill is trying to do. Many of the provisions in there are overdue and will certainly improve the position of tenants and improve their access to redress, but on balance we don't think this bill strikes. To be clear, are you saying that in rebalancing the relationship between tenants and landlords, the Government hasn't gone far enough in favour of the tenant or the landlord? Our particular point is that the way in which this bill is written, where a landlord at scale wants to disinvest or change or fails in their business, then the cost of that disinvestment and the cost of that failure is disproportionately transferred to the tenant in the first instance and the local authority as the homelessness authority down the line. We don't believe that allowing a landlord, for example, who decides to disinvest or simply evict all their tenants on a mandatory ground is an appropriate way of managing change in this industry. Okay, that's clear. Who's next? Thank you, certainly the City of Edinburgh Council does welcome the bill and finds that especially the removal of the no-fault ground significantly improves the lot of the tenants and the mandatory grounds for eviction, although somewhat, as already indicated by Tony Keane, trouble on dust is like a balance from removing that no-fault ground for change, especially regarding the small scale of most landlords who only actually own one or two properties. Is this brand of you anything like to add at this stage? Thank you. In that case, I'm going to hand over to my colleague Dave Stewart who has some questions. I'm interested in the rent pressure zone proposals that are in the bill and a few points I'd like to raise with you. The first is, do the witnesses feel that we need to protect tenants from excessive rent increases? Witnesses will be well aware with the Government figures that if you look at the regional variations, I think that Greater Glasgow and Lothian appear top of the league in terms of increases, but yet Aberdeen and Aberdeenshire, presumably because of oil price collapse, have fallen. What are the witnesses' views in the rent pressure zone proposals? I think that our view is that they're not necessarily going to help or be particularly effective. The underlying point there is that the answer to rents rising faster than inflation or rising excessively is to deal with shortage in the housing sector. We understand exactly why they're there, but on balance they won't affect asking rents, only current rents, passing rents. The cap that's applied is inflation plus 1%, so it's a real-terms increase even under the cap. The evidence is that rent increases or excessive rent increases, if you like to call them that, have been an issue in one or two very limited areas, actually rents across other parts of Scotland that have fallen over the last three or four years. It's a bit of a sledgehammer if you like to crack a nut. I'm not convinced that focusing on controlling rents in what is a market-driven sector is the best approach to dealing with affordability. I'll obviously bring other witnesses in, but just before I forget, Mr... I'd like to come in on that point. It's just to say that this isn't going to affect a wide swath of local authorities. It's been said, Edinburgh, that one of the areas where it would could perhaps alleviate some of the pressure. But it is one of the areas that, as I say, we would want to perhaps come back after that meeting on December 3 to address some of the issues in relation to this and some of the concerns that might be brought to the table then. So I hope that that would be respected, convener. Thank you. Thank you, convener. Can I just go back to Mr Cain's point? If we're being slightly techie about this, you talked about inflation plus 1%. The irony that you may have gathered from previous evidence sessions is that the index, CPI, doesn't actually include housing costs. I thought that was a great irony in one level that we're reflecting inflation and housing costs, but the index doesn't reflect inflation and housing costs. And we made that point in our written submission, which is that CPI is not necessarily a good measure of costs facing landlords. And in any event, ordinary inflation is not what necessarily drives up rents. It's house price inflation that drives up rents. The way that rents are calculated and listened quite carefully to the evidence of colleagues in the private sector when they appear before this committee, they made that point too. Do other witnesses wish to come in in that particular topic? Certainly the Edinburgh City Council welcomes the fact that there are some new tools in the toolbox in this bill. However, the concern that we have is that because of the need to evidence the increasing rents in an area before you apply the rent pressure zone, the damage may already be done before you can actually apply the rent pressure zone and therefore it may not have the intended effect. Like the other panel members, we see the underlying problem of high rent as more market failures to provide enough housing and therefore the more targeted approach would be to ensure that there is sufficient supply of new housing that should address the issues of increasing rents. I'm dealing with a case at the moment where we see an abuse of a situation that relates to a new heating system being installed in a home. The rent will rise because that new heating system has been installed. However, the rent was never negotiated on the basis of an inadequate heating system being there. It was set at the same high level that others were. We have a situation there where because a new heating system is going in the rent is going up but the heating standard should have been met at the time that the original rent was being set. You get that kind of absurdity of taking place. We are contesting that at the moment in North Lanarkshire. That is the council. Local authorities are going to play a key role here because it is local authorities that make the application to the Scottish Government, which then uses the affirmative procedure in order to determine that for a five-year period. In general terms, if COSLA and local authorities are not happy with this, it's not going to happen because the application has to go through local authorities initially. I move on with your question. You have gathered from our previous evidence sessions that one of the criticisms of this is that there is insufficient data on private rented sector. Would you agree that we need to look at data capture in a different way? Otherwise, it's very difficult to determine whether we can use the mechanism of rent pressure zone proposals. Mr Cain? Absolutely, that's a very fair point. There has been an improvement in the evidence based around rents but it's largely come from the sector itself. It's not necessarily fully independent evidence. I think there's been a number of research exercises carried out around the structure of the sector, around landlords and around tenants. One of the gaps is about property journeys within the private rented sector. Not all houses stay in the sector for very long. In fact, there's quite substantial churn. Houses moving in and moving out of the sector and I think that's not well understood. In the light of that, yes, I think if the sector is going to continue to grow, if it is a formal part of the Scottish Government's housing regime and it has objectives for the sector, then it needs to be better understood than it is at the moment. Thank you. Any other witnesses wish to comment? I think I would agree with that. We would agree with that because one of the key elements, especially when rents are involved is you tend to end up examining initial rents of private rented sector properties which are coming onto the market and it's really hard to account for those properties which are still being tenanted. There may be no rentalised people that continue their tenancies or really modest rentalised tied to either inflation or maybe a fixed percentage or maybe two or three per cent in their lease and identifying the rises in properties with sitting tenants is difficult to establish. Thank you. Anybody else? The other issue that I would like to raise witnesses will be aware that the proposals for the rent pressure zones just apply to existing tenants and there have been some arguments that should apply to new tenants as well or the witnesses' view on that and is there a danger that that could impact on the private rented sector? Let me give you an example. Let's take an Edinburgh example. The zone may be north Edinburgh or not south Edinburgh. We could find a flight of capital in terms of new investment away from the zone. What are the witnesses' views on that? I think that that's very, very likely and you can see parallel examples for example where local authorities have attempted to control the number of houses in multiple occupation in a particular area. You immediately see a spillover into adjoining areas with the growth of that type of investment in those areas and I think the capital in this sector can be quite mobile and I think that's exactly what would happen. I wouldn't feel equipped to comment on that at the moment. Certainly, we have 57,000 rented properties in Edinburgh. The bulk of these are not built to lend properties. These are individual properties which may be backed by buy to lend mortgages. If there was a cap on initial rents, you may find that the economics of that rent doesn't work out and you may find a collapse of that private-link sector tendency. However, we don't have any figures on that. Alex, you wanted to come in. Yes. You've made it clear that you feel the way to deal with rent pressure is to deal with the housing shortage basically to deal with the supply side but I just wanted to dig slightly deeper into that. Are you talking about the housing supply generally or are we talking here about the private rented sector and specifically the question that I wanted to ask was do you feel that there's anything else in the bill that will actually fuel growth in the number of houses made available for rent under the private rented model or do you feel that the bill wouldn't have that effect? There's no reason why the private sector should not play a very prominent role and a very necessary role in the general provision of housing. However, we want to ensure that the private sector is engaging in that driven by a recognition that they want to return on their investment but they also have to recognise that the services that they are providing have to be provided in a professional manner. That's the more general answer to the question. The other point that I want to make is that there are certainly opportunities, I think, for people with special housing needs for the private sector to look at that territory and to invest in that territory and to be able to provide accommodation that is suitable for, for example, people with disabilities. In my own hometown, we have on Thursday of this week, we'll see such a facility opening and it's been a revelation to see the way in which the local authority and the private sector have been able to work on realising an aspiration that some people dismissed as being unlikely to succeed. We have to look, I think, at using the resources of the private sector to a greater extent in the provision of housing where that housing need is being identified. The point that was made by my colleague from Edinburgh is that we have to find the balance between a sensible equilibrium, if you like, between return on an investment and quality of service to the recipients of that service. I hope that that helps. My final question is just a more general point. Do the witnesses have any views on the bill's provision regarding rent increases and challenging a rent increase? As witnesses will know, the provision will be a rent increase maximally once a year and three months notice. What are the witnesses' views on that? I don't think that I know enough about the specifics of that in terms of where we have experienced that. I think that when rent increases are being sought, then there has to be clear understanding of the tenant and the landlord. That has to be the first stage. Where it is clear that there are serious flaws in that type of agreement, then it has to be challenged. It can be challenged through individuals acting, or it can be challenged through collectives taking action, or it can be challenged through local authorities or through the Scottish Parliamentarians. That is how I would answer that question. Mr Cain? The provisions in the bill seem to me to be entirely sensible. I think that the officials, when they came here, said that there would be very little point in removing the no-fault ground and then leaving the option for landlords to drive tenants out by racking rents. Those replicate the more limited provision around the existing legislation. For me, they make complete sense. Our position is the same. They are broadly similar to the existing provision for assured tenancies where you can appeal the rent increase and we also feel that three months' notice is a good balance between the tenants being aware of what the proposed rent rise is and the need for the landlord to plan ahead. Anyone else make any final comments? Thank you, convener. Mike. Thank you, convener. The committee heard from a number of organisations representing private landlords last week's session. In their opening statements, they said that everything is almost perfect in the private rented sector, except perhaps of one or two a tiny minority of rogue landlords who could be dealt with if only local authorities implemented the current regulatory regime properly. Bearing that in mind, do you feel there's a need to improve the operation of the private landlord registration scheme and also the repairing standard? Will that not have the effect of improving tenants' security of tenure? First of all, local authorities do fulfil their obligations as far as the registration and as far as the HMO is concerned. I would say that I have never had a private sector landlord coming along to me and saying that your local authority isn't doing well enough. If that were to come to me, I would certainly take that matter up. It can be used as an excuse by those that would present themselves sometimes as being very, very good landlords, but when you look in depth at some of the undertakings of them, you find that that isn't paralleled with the truth. I, of course, want to make sure that local authorities fulfil their obligations and whether they are not fulfilling their obligations, we want to hear about it and you quite rightly would want to hear about that too, because we need to make sure that we are working in a constructive way with the legislation as it currently is. We need to seek, and as I say, we'll be having a meeting on 3 December, and it may well be that we'll come back with more to say in relation to the regulatory aspects. But there are plenty of landlords out there that are extremely unwilling to align with the very sensible and proper and correct responsibilities that their licence requires them to meet, and those are people that I think we need to deal with. Anybody else here to comment on that? One of the key issues with repairs is there is very few rogral landlords, if you want to call them, but a significant number of tenants that face problems of some more minor disclipia. The law that stands requires these tenants to make their own applications to the private rented housing panel, which opens them up under the short-shore tenancy to retaliation from their landlord or at least the lack of security that this goes ahead. Certainly the local authorities welcome the provisions that you've given us to make our own applications to the private rented housing panel. However, that still is a factor in tenants' unwillingness to engage in the proceedings. I met with one of the charities that provides the council funds to provide help for people to go to the private rented housing panel. After they explain to them the possibility that the landlord might seek to end their tenancy after the application has been made, most do not want to make that application to the private rented housing panel because of the lack of security. That is the key reason that the council welcomes the removal of the no-fault grounds to give tenants a security of tenancy they need to challenge the problems of disclipia and go to the private rented housing panel because it is only with security of tenancy that the private rented housing panel really works for tenants. I do not doubt the integrity of the witnesses that you spoke to. They are professionals operating with a particular part of the sector and they gave an honest view of what they see in that sector. I think that's partial. They represent less than half of the properties under management in the private rented sector in any event. I don't think they necessarily have a full picture of what the experience of tenants is like in many circumstances across Scotland. There is, in my view, a systemic and cultural problem with many elements, many parts of the private rented sector and tenants suffer as a consequence. The regulatory framework is part of setting the arrangements for an improved approach and an improved culture in private renting. So far as enforcement is concerned, not all the difficulty and enforcement rests with local authorities. Anybody in a local authority will tell you that. It's one thing identifying a landlord who has broken the law. It's something else altogether when you're getting a criminal charge against them and when you get a criminal charge, something else when you're getting a conviction that is a genuine deterrent conviction. We have seen the Scottish Parliament raise the maximum fine for non-registration to £50,000 where fines are levied. They're much, much less than that. On occasions in my own experience, less than the cost of the registration that was avoided. So enforcement can be better. Local authorities can play a part in that. It needs to get paid for and there's a conversation about whether simply raising fees to landlords that do register is an appropriate way of funding enforcement against the rogue element, if you like. But it's not all down to issues around local authorities. And I don't accept that everything in the garden is rose as far as private sector is concerned. Thank you. And if I could just come back just briefly before I leave this area of questioning. Councillor McGuggan mentioned that HMOs. Are you able to tell me, Councillor McGuggan, what percentage of HMOs are granted following an inspection of the property and what percentage are granted following a desk-based exercise? I couldn't give you that information, but we could certainly perhaps seek to acquire that information and get that to you. And we could try and do that by sometime after the third of December. But one of the things that we have to bear in mind here and it's been referred to there is that resources are needed to make sure that local authorities can do the job as thoroughly as you would wish them to do, and as thoroughly as I would wish them to do, and as thoroughly as the partial commentary from registered landlords would wish them to do. So we do need resources. We're struggling. We've got a high demand on local authority resources as it is at the moment. And we need to see that change in this particular area. It's very, very important to make sure that we are being assisted in the job that you want us to do and you want us to do in an effective way. We'll do it in an effective way. We'll try and channel the resources that we have, but it's getting harder and harder to do so. But you're still currently doing it effectively? Yes. Or you're not. No, no, no. I certainly, you know, that you... I can't speak for all of the local authorities, as I say. This is a matter that will certainly be discussed. The whole issue of registration and the resources that are available for and what's happening at the moment. I think you ask a very good question. I would doubt very much if it said that if we're able to cover right across Scotland, we're able to cover every single registration by a visit to that. And remember, you could be visiting that four or five times if there are complaints coming from it. So it becomes a very expensive business. But that's information that we'll try and bring back to you. Thank you very much. That's very, very useful indeed. If I could just move on to my next question now, convener. And it was to just seek the witnesses' views on the removal of the no-fault ground for possession. Do you think that that will lead to greater security for tenants? It's an improvement in the tenancy regime, absolutely. There's no question about that. But it's not the only issue in security attendia. And Alacio has supported it throughout the process in the two consultations that have taken place to date. And happy to say the same here. The removal of the no-fault ground, I think, is an important move to balance and rebalance the relationship between tenants and landlords to put tenants in a stronger position to exercise their rights and take enforcement action or encourage enforcement action against their landlord when that's necessary. And to leave them in a much more secure and settled position in a house that they may wish to occupy for the longer term. Any other? Well, I think, as far as reposition is concerned, I think that the list of reasons for that, I think, hasn't been before my executive group. But I think that the executive group would be comfortable with most of what's in there. And it will be discussed at the meeting. We agree that the removal of the no-fault ground will take forward the duty of attention greatly and will greatly improve the sector because it does allow tenants to raise issues and the confidence that they will not have any immediate comeback from the landlord. Thank you, Alex. The best at jump picking up from landlords and their representatives, I've had it in evidence, I've had it privately, is that the removal of the no-fault ground will take away the option of no-fault removal and cause landlords, in many cases, to pursue one of the other grounds, the anti-social behaviour, for example. And as a result, it may actually result in a more litigious and a more confrontational approach where, at the moment, quite often landlords will simply use the no-fault ground rather than try to pursue a case that they have to prove. That is absolutely and very clearly the case. I mean, the evidence is that most tenancies are terminated by tenants, but there is also evidence that landlords when faced with a difficult housing management issue to resolve, rather than engage with a management issue, will terminate the tenancy. I mean, much was made of issues around anti-social behaviour, for example, when the landlords were here in front of the committee. I think my response to that would be at two levels. First of all is, why is a level of proof required to remove somebody's home greater in the social sector than it is in the private sector? To what extent is justice blind on the issues of tenure when it comes to those types of issues? That's probably my principal point when I think about it. I'll settle at that. You suggested that it might be easier to provide, to get people looking forward and give evidence. What I've been suggested to me is that where the no-fault ground can be used to deal with, for example, an anti-social behaviour case at the moment, what it will require is for that case to be proved in a court and consequently, neighbours will have to be prepared to give evidence and that it will produce a much more confrontational relationship than the one that exists under the current opportunity of a no-fault. I think it will produce a much more engaged relationship between landlords and their tenants when they're dealing with housing management issues. One of the comments that was made at the evidence session was nobody in their right minds would go to court over anti-social behaviour. We went in local authority housing as a head of housing for eight years and we went to court on a regular basis. That's the correct way to deal with it. If you were a landlord who owned a single property that was up for rent, would you be prepared to go to court in these circumstances? I think we're talking about removing somebody's home. I don't know if any of the committee members have been present at an eviction. I have. It's an act of violence. It's a very nasty thing to do to a household and I don't think it should be done unless you've suggested that in your public capacity that you were prepared to go to court in these circumstances. If you were an individual landlord owning a single property, would you be in a position to take your case to court or would the fact that that is an expensive option exclude you from the legal process? I think if you're a landlord then you have to play by the rules that are in place that the Government puts in place for the management of that sector and you have to have some respect for the rights of the tenants that you're renting to. And if those rights are set about by legislation that requires a particular course of action to remove them for antisocial behaviour then I think that's the correct way to go about it. Many accusations of antisocial behaviour when you get down underneath them the evidence says it's something else going on here and summary ejection on accusations seems to me to be an inappropriate approach to dealing with those issues and I ask the question why would you have two standards of evidence of tenants in the social rented sector and tenants in the private sector? Can we bring in some of the other witnesses on this specific point? I think that Silky's furiously writing down a we note for me to say something but I'm going to say to you Silky no you say it to the committee here but it's about the individual landlord one home basically one property as opposed to the institutional landlords there will be differences there of course there will be Silky. Thank you. I think that the points you've raised cancer making has already said that our executive group will be looking at these things in more detail so we can only speak very broadly at the moment but we will explore these more detailed issues I think on your question I would answer with two things generally we've been working as part of the private and rented sector stakeholder groups and so on for a long time now general thrust we have taken in there is for the very strong need of a professionalisation of the sector and I think part of the problem, part of the issues that you're highlighting here are a result of the fact that we have got a sector where there's a lack of this professionalisation where that is there these issues can be dealt with in you know very often a lot better ways that brings it to the forefront what cancer making has just highlighted that part of the challenges we are faced with here is that we've got such a big difference between individual landlords as you have highlighted who might be hiring out a flat while they're working for half a year in Hong Kong who would be finding certain procedures, a much bigger challenge and big institutional investors on the other side these are things we would like to explore with our members on the 3 December how that tension can be resolved whether there might be opportunity for dealing with these things in potentially different ways but we think that the real problem in here is the lack of professionalisation in the sector at the moment and that needs to be dealt with Can I say again, convener, I hate repeating it but I'm very anxious that some of these issues will be discussed, will be deliberated over at that meeting and we'll be responding to some of these questions that may help you Mr Stewart. Mr Haycock, did you want to come in on this point? Yes, I would just like to say that the burden for removing somebody from anti-social behaviour is the same under the existing law as it is under the new proposals. The private tendency that we have in the sheer tendency regime says that if a landlord wants to remove somebody from anti-social behaviour the test is broadly the same now what we have is landlords who are not wanting to evidence that and are short cutting the system by using the no fault grounds so where a landlord should potentially be using one of the names of grounds so anti-social behaviour, rent payment of rent these are all grounds under the existing scheme but because of the overuse of short-assure tendencies in such circumstances where Parliament didn't intend them to be used they are basically finding the easiest way to remove somebody and that is the no fault grounds and so yes you will see other grounds being used but that is right and proper. I would also point out that we are very supportive that these cases would not be going to the shell of court our feedback from land laws is that going to the shell of court is a time consuming and problematic issue but the bill that you have before you is sending these cases to the first theatre and you know which is a streamlined housing chamber which will be able to deal with these cases effectively and that is something to be welcome I think that we would have concern if these cases had to go to the shell of court but you are also building in the proposals that they go through this slimmer quicker justice system which you are taking forward as a wider reform of the justice system thank you. If I could just follow up my concerns about neighbours or co-tenants having a reluctance to go on the record in these areas can I just ask what your experience is for the council housing and do you find that an issue at the moment if there is an antisocial it is a substantial challenge in the process to give neighbours particularly where you are dealing with genuine and very severe borderline criminal antisocial behaviour it is an enormous challenge to persuade neighbours that they will be safe and to come forward and give evidence it is a challenge that you face every day I am not about to offer up any particular answer to that but I have recognised part of the work that antisocial behaviour officers do up and down the country is exactly that, having that conversation persuading neighbours to come forward finding other ways of presenting their evidence professional witnesses for example witnesses from council officers themselves but it remains a challenge I would also say that I have also seen instances in the public sector where the complaint of antisocial behaviour has been made by the perpetrator as a deflection and it is only sharp re-investigation at a late stage in the process as spotted where tenants were learning disabilities for example of two examples of disabled tenants the victims of antisocial behaviour who have found themselves in the process towards termination but in the end the problem has been spotted and the correct direction has been taken so the burden of proof needs to be there it is a challenge and witnesses and neighbours need to be supported in the process of giving evidence there is no easy answer to that but I don't think that allowing effectively summary removal is necessarily an appropriate response to the problem We do recognise that while the local authority maybe has the capacity to do that for individual small landlords that would be a significant challenge Absolutely I would also make the point that most of the stock sector is managed by investor landlords not owners of a single property and once you have more than one property you are an investor landlord and there is a growing and increasingly good quality management sector out there so services are available to those landlords to professionally manage their properties at a cost but to professionally manage those properties and deal with those issues for them so if a change in the legislation which requires more use of formal procedures also promotes a growth in that professional sector then I think that is a good outcome Oh sorry The question you asked will be different from the public sector it won't be any different people will be fearful at a case last week where the particular person came to see me and it was a drug dealing in another house and all the associated problems that come with that I made an arrangements for a meeting with the housing department the senior member of staff there and the local police and I got a phone call after I had phoned her to tell her that arrangements in place I'll be there with you I got a phone call to say no I've decided not to take it any further I'm frightened that I'd be the recipient of windows getting smashed and so on and it would be no different in the private sector but it's an unfortunate aspect of human nature maybe I'll also ask you about how you think that the bill will change how rent arrears are dealt with in particular we've taken representations from both landlords and tenants interests saying that rent arrears grounds for different reasons can be seen as quite draconian and I would just like to get your interpretation of how the bill might change how rent arrears are dealt with you could put that in the context of some of the pilots for the roll-out of universal credit who has seen certainly the Highlands and Islands increased rent arrears due to things like people not being in receipt of their benefits for up to three weeks after the initial registration to be on benefits I don't know if you're asking me to comment on universal credit and welfare reform the main thing is the bill and how the rent arrears are worked but if you could possibly comment on the roll-out that would be useful to you the collection of rent is land law 101 it's the central transaction in the tenancy agreement the obligation to pay and the requirement to collect I'm I probably take a rather harder line on the issue of non-payment of rent than some of my colleagues but where a tenant doesn't pay the rent and consistently doesn't pay the rent there needs to be a sanction in the public sector and in the private sector the service is funded from rent and it's only funded from rent is a very serious issue that doesn't mean but equally as on the issue of antisocial behaviour there may be all sorts of more complicated factors in there where tenants will be able to get back to put on to an even keel, get back to paying their rent in advance as the contract requires so having a process of examining those issues as part of a process of removing a tenant for rent it strikes me as not unreasonable I think the most important part of that answer is the examination of the issues it's important that if someone is in rent arrears that they are not it's not assumed that they are in rent arrears because of just pure indifference to the responsibility that they have but they are in rent arrears or they may be in rent arrears because there are some very very serious aspects of that assistance can be and is being provided through local services citizens advice, local housing office local maximisation these are all very very important but as Tony says there will be those that do not care about these aspects don't take the advice and there comes a time where the responsible step has to be one that's got more of a disciplinary nature but that should always be prefaced or work with the family or the persons concerned in that to try and assist them through what might simply be a difficult period and you're quite right you refer to welfare reform and some of the consequences that have flown from that as far as people the extra room so I hope that helps we believe again this is another area of where the removal of the no fault grounds actually will benefit because again you would then actually have to prove the rent problem as per the terms of the act where no fault grounds is commonly used to mask the issue for example I dealt with a quite stressing call at the beginning of the year where the landlord wanted to remove the tenants because of late payment of rent I offered them to move to get them in contact with charities to mediate and it turns out that every December the persons slightly late in the rent he agreed that every genuinely his rents made up in full but he decided he was too bored of that and decided to evict the person on the no fault grounds again using the no fault grounds to mask the problem where the law would not otherwise provided for that eviction on the terms of either persistently late paying of rent or actual loss to the landlord so again removal of no fault grounds is one of the things that will actually help protect tenants and help manage that process because the terms laid out in the act would actually have to be followed rather than no fault grounds being used to mask the problem thank you Can I ask witnesses about the issue of the determination of the tenancy by the landlord eviction grounds section 41 empowers the tribunal to issue an eviction order against the tenant if on the application of the landlord the tribunal finds that one of the eviction grounds contained in schedule 3 applies there are 16 eviction grounds contained in schedule 3 of the bill four of the mandatory and 12 discretionary do you think the eviction grounds which have been included in the bill achieve the objective of allowing landlords to recover their property in all reasonable circumstances or should additional grounds have been added We would discuss this at the future meeting I think that it is a reasonable coverage the grounds that are stated there but it may well be that we would come back and ask for additional aspects to be included I won't say what I think they are if there are any We allow you for that interim response a latch when our evidence identified four particular grounds our view is that the balance that has been struck is in favour of the landlord rather than the tenant and we would like to see that adjusted in particular areas and the four that we picked out as being not in our view entirely appropriate where the landlord wishes to sell a property a lender repossesses a property and wishes to sell it or that the landlord has lost their HMO licence or their landlord registration aspects or business change and business failure in the private rented sector and allowing these grounds as mandatory grounds effectively transfers the burden and the costs of business failure and business change on to the tenant and on to the public sector if the private rented sector is to operate as a mature industry properly connected to the full framework of housing legislation and the housing sector as a whole then these things need to get dealt with in a different way I would give a couple of examples of other industries where business failure for example is managed in a different way if you look at the travel industry if an agent goes under whilst holidaymakers are abroad there are arrangements in place to ensure that those hoarding makers do not pay the price of that business failure and the after arrangements will bring them back home in a reasonable way and similarly in the banking industry not the best example but deposit as money is protected in the event quite substantial sums protected in the event of a bank failure in both cases these are priced into the way in which those industries operate and we would argue that where a business fails a landlord fails to pay their mortgage or loses their registration or their licence and it's quite inappropriate for the tenant to be the person that immediately bears the cost of that failure and the public sector through the homeless persons legislation that picks up the fallout from that and I would extend that to a lender under a buy to let mortgage for example lending specifically to a landlord to operate as a landlord of mandatory right of repossession and sale into under occupation if that landlord fails these seem to me to be unfair and the same around issues of business change if a landlord chooses to disinvest then they need to plan and manage that disinvestment not simply load the consequences on to other people and we have seen a couple of examples where I think public opinion on this matter is quite clear if you look at what has happened around the Agnes Hunter Trust in Leith or less recently the New York Estate in Hoxton where investor landlords attempted to clear large numbers of tenants it's simply not acceptable and in both cases appears to have been stopped clear you mentioned the particular situation of loss of landlord registration or HMO registration do you think that there's a danger that enforcement people might be reluctant to enforce these issues knowing that at the end of the day the local authority would enforce it and the local authority would then have to deal with the homelessness situation in our evidence what we said was it would have to be a factor in the decision making if you're talking about deregistering a landlord with 50 or 80 or 120 properties in a particular area I cannot imagine that it wouldn't be a factor in the thinking of officials who are looking at that and looking at the action and the likely fallout and results from that being a factor in the thinking of officers should also require a more thorough examination of what alternative methodologies could be adopted to that kind of multiple residence situation arising it may well be that local authorities would wish to have the power to take over those multiple residences in order to manage them for a period of time until such times is an alternative solution to be found to it's a negotiation is required there it's not just a simple statement of you know well there it's there that's it Adam Sorry I would just add that we do feel that the balance is right and over the thing about landlord legislation in HMOs City of Edinburgh council in the earlier consultation actually asked for these to be added into the bill as it stands because that basically has continuity of what the situation is today where there has to be consequences for a landlord that fails certainly making people homeless is not what we want to do or intended to do but we were concerned that if there wasn't some provision in the bill for a landlord to essentially lose out for the business failure that these two regimes would lose their impetus because what use is an HMO licensing scheme that if you use your license there is no consequence and business continues on as normal but clearly there is certainly room for perhaps improvement in that with additional power then we will be open to looking at how that business failure could be improved but certainly what we were just looking for was essentially parity with what the regime is at this moment in time OK, thank you, Adam OK, can I ask about the initial period the initial tenancy that is part of the bill section 43 of the bill provides that during the initial period of the lease the landlord can end the tenancy using any one of five out of the 16 eviction grounds Do you have any comment that you'd want to make on this to understand some of the five or the ones that you're criticising, Mr King? The particular one I'd pick out is the lender which is to sell and it seems to me to be inappropriate and I don't think it's any more appropriate during the six months or the initial term of the tenancy than it is later The initial tenancy idea Do you have any comment on that? I think that the consensus of evidence has been that people are broadly supportive of it I think that was the view that we would take as well that a tenant can be evicted for non-payment or anti-source behaviour this is also appropriate during that period so other than that which relates to default and lender repossession I don't have any difficulties with that From a public sector point of view the tenancy is slightly different most local authorities are using weekly tenancies but the investment context is very different and the argument that was made was that landlords needed to have some certainty around the cost of start-up costs around letting a property so knowing that they were going to have a tenant for six months seemed to be a reasonable balance for them against that part of the process that seems to me to be perfectly reasonable, perfectly sensible What would you do to change the issue of the five grounds during the tenancy what would you do there how would you tweak the bill to that What we've asked in our evidence is the removal of the grounds that we highlighted because we believe them to be inappropriate Would that leave any grounds? For repossession the breach of the tenancy, non-payment of rent anti-social behaviour, breach of tenancy terms they're all there the areas we have picked up is grounds which are essentially about business failure where effectively what they do is transfer the cost of that on to the public sector and on to the tenant Anyone else like to comment on that the initial tenants there I think that's just the last point made there it would be to re-amplify that local authorities at the end of the day can be landed with the responsibilities for meeting the calamities that result from terminations of that sort Local authorities do not have sufficient resources to be able to do that in the way that we should We're working hard at the homelessness targets at the moment and we've done very well there but this would be a nadded requirement being placed upon us that we would try to face it in the best possible way but it's something that there isn't an easy answer to quite honestly and I don't know whether the proposals here will enable us to be able to do that any better unless the resources are made available to meet the demands that this issues of this sort would raise for us not only to say that the initial period of rent I think is a reasonable compromise for land laws to make the undergo significant costs when setting up a tendency costs that parliament has decided they should not be able to recover in any other ways by banning of premiums and certainly we welcome that therefore it is not unreasonable that a landlord should be able to expect a minimum length of tenancy and I seem to recall that the Scottish Government's research when they conducted our private ledger sector review several years ago found that there was great support for that initial six months tenancy and they didn't want to see it to reduce any further so we do set a reasonable balance between the needs of the tenants and the needs of the landlords to have a wee bit of certainty about the costs associated with setting up a tenancy Councillor McGwigan, I'm conscious of the pressures on your time but we only have a few short questions left before we end the session so if you despair with this okay, clear Was this the supplementary in terms of the six month tenancy? Do you have concerns that for some tenants perhaps someone who's fleeing domestic violence that that could be quite restrictive and not offer any flexibility to the tenant at all? That evidence of that effect was given in previous hearings and I think there was a risk around that. I have also spoken to private landlords who have been faced with that particular issue and whose response is to be very flexible and prevent out and on and help them to remove themselves from that risk. We're striking a balance I think at the end of the day that the provisions allow for tenant and landlord to agree a shorter period if the tenant requests that so a tenant who feels they might be at risk could at the beginning of a tenancy ask for that. In the end these are all compromises which are around to being perfect. It is a real risk, it's a challenge and a sympathetic and appropriate response. If the alternative is to create a particular ground for termination where the tenant is genuinely at risk if they remain in the property I suspect that that would be very difficult to evidence and very difficult to draft as well so I think in the end I probably would say this, I'm a bloke you may be living with a compromise around those issues but equally I can see why you would want to make some specialist provision in order to protect against that. In a situation like that there will be a solution and the solution can be found and it has to be found because it's an absolute affront that can be taking place in being tolerated whether it's for three months or whether it's for six months. Can I ask about the wrongful termination regime in the bill? It seems to many that there are very little teeth in the bill in terms of addressing situations where landlords use their grounds but that is a smoke screen for example if they wish to the reason that they give is that they want a member of their family to move in to the tenancy and then further down the line that may happen but it's not clear that they weren't looking to put somebody in. In the system just now what checks are there that are made? Is this just another convenient ground for eviction that should be looked at or what's the regime like at the moment? Is the bill doing anything to tighten that up and are the penalties in the bill for wrongful termination significant enough to deter those kind of actions? I would certainly hope that the bill would assist in enabling the deterrence of that sort We do see this happening it happens on a regular basis There is a requirement I think for local authorities to be more diligent on that particular area where they are looking at what the real background to this is When I say diligent some would say that the responsibility of local authorities as far as housing is concerned is to look after their own properties but we have got a responsibility to look after how licensed operators are who want to pass that on for a particular reason but is using a particular reason as a cover for something else we have to be aware of that and I think we have to find ways of if not being able to counter it in the immediacy then we would be bringing back possible amendments that we would be looking into those kind of territories the same point was made by Mrs Adamson earlier these will arise when you are left very frustrated but the legislation will still not allow us to assume that it can be easily dealt with it won't be easily dealt with under the the system that is outlined here I don't think there will still be problems These grounds are not used at the moment they exist but they are not used at the moment and no foreground is used instead so a landlord who intends to sell will never say that or intends to move in so there is no experience of using these grounds I think that if you are better removed if you need to make a particular arrangement for a specific provision for landlords who are genuinely the previous occupier of a particular property then that might be appropriate otherwise we would simply see these grounds removed however if they are to remain and you are going to allow eviction on a statement of intent from a landlord and that's what we're doing here I intend to do this will you please put this person out of their home then I think the penalties need to be far stronger than these are and punitive three months rent up to to be clear three months rent at the discretion of the tribunal is not sufficiently strong a message around the potential abuse and I think there ought to be a third party referral route as well so the likes of local authorities or others can can help the tenant in that situation I mean the tenant may well have gone before the evidence is available that the landlord had been disingenuous so a third party route part of this is about connecting this piece of legislation to other pieces of housing law there needs to be a connection here between what this bill says and what the legislation around landlord registration and national licensing says so there is a very clear connection but those who use these grounds disingenuously evidence that can be proved to use them are also at risk of losing their registration or their licence so there needs to be a connection there but my view is if you're going to allow eviction on statement of intent then the sanctions for abuse of that should be more punitive than these are but prevention is better on cure so you would take these grounds out of the bill as I've already said it seems to me that if an investor landlord the right to remove a tenant on the grounds that they say they're going to move in or move a member of their family and they're an investor landlord it's a business it's not a selection of houses that they might want to put some of their family or their friends in they're investing in it for a return and I think you have to treat the sector as a mature business sector and not as has been attempted to date to make a series of compromises about it these are really owners and they own their houses and we should treat them like their owners I was just going to ask Mr Haycock if he had any view on this Thank you as Mr Cain has indicated these grounds broadly are the same as the existing regime and again with all the other grounds they are not regularly tested because of the no fault ground we do see occasionally circumstances which could be conceived as contriving especially when family members are moving in but for really short periods of time so it's difficult to evidence if you use one of these grounds and you move in but maybe only for a month or so that's perfectly legal and of course there's no in the current regime there's no penalty for that so we welcome the fact that you have put in penalties for abuse of these grounds which currently don't exist I think part of what we will need to see to see how effective those will be is how easy it is for our tenant to go to the first tier tribe and actually get that compensation because what we're finding with the similar scheme of tenancy deposits where somebody can go to the share of court that is quite a burn of some process and a lot of tenants are not choosing to access justice in that way and we certainly hope that the barrier for justice under the first tier tribe will be significantly reduced Remember again that local authority will be the organisation that is called upon to assist the tenant in a situation like that and going to the tribunal so once again there's a demand there in local authorities to step up to the challenge but the resources don't always accompany it I was just going to say that those grounds that you're suggesting should be removed are perhaps irrelevant in the context you described but they're absolutely essential if you look at the rural or the farming communities where families traditionally move through properties I once kept a house empty for seven years before my son went into it that was a terrible thing to do it could have been occupied by someone a rental arrangement but it was something I was afraid to do and I would seriously worry about these grounds being removed in case it causes people to make decisions on the same grounds that I did I think my response to that is that where you're talking about individual properties and individual owners then separate arrangements may or may not be appropriate for the financial business sector that needs to be managed in a way which encourages professionalism which encourages individual landlords to use professional agents to manage their properties and encourages planning around investment disinvestment and business failure so that the risks around those things and the impacts around those things on the public sector and on tenants are minimised there will always be, as we talked about for victims of domestic violence areas of compromise and areas of risk it's not going to be a perfect world the core of this is how do we see the private rented sector operating how does it fit within the wider framework of the housing system and the housing provision and how does the sector itself relate to public sector provision and another legislation there's a balance to be struck here I'm making a case for a particular approach I think you need for a very serious point I think it's something that should be considered it takes us back to the whole issue of housing across Scotland and the need for us to build more houses we can look for specific solutions to this little bit and that little bit but the bottom line is we need to start building houses again here in Scotland probably a good point on which to end the session unless witnesses have any final comments in relation to the build which they don't think have been adequately covered so far with the cane just one observation if you'll forgive me the private rented sector as it currently exists is largely a product of the tenancy regime that we have in place the tenancy regime has set a framework created a culture created business opportunities and those business opportunities have been taken and developed and if you look at the student market for example it is the short assured tenancy and the whole delay exemption which has allowed that market to grow in that particular way and allowed that investment and allow those businesses to grow I think one of the difficulties in changing the regime is that it can't be certain how it will be reflected in business culture in the future investors will adjust and change the way in which they do their business in order to ensure that they continue to generate a return what I think is important and what I think much of this build does is it drives landlords towards a more professional approach to managing their properties it formalises routes in and routes out of the sector both as a landlord and as a tenant and for a property coming in and out of the sector and I think that's to be welcomed because the decisions that we have made around particular grounds are about strengthening that cultural shift in the sector which this bill will undoubtedly generate once it's in place okay thank you very much can I thank the witnesses for their evidence this morning we look forward to further written evidence from the convention of Scottish local authorities following their meeting on the 3rd of December that will not be in time for our final evidence session with the minister but it will certainly inform the deliberations of this committee and enhance our understanding of the bill I'm sure can I thank you once again and we'll now suspend this meeting for a briefly for a witness handover thank you okay I'll resume this meeting of the committee the second panel of witnesses to provide oral evidence on the private housing tenancy Scotland bill today and largely representing the interests of legal bodies can I welcome Mike Daley solicitor advocate and principal solicitor at the Govan Law Centre Chris Ryan senior associate solicitor head of housing and general team legal services agency and John Sinclair member of the property and land reform committee at the law society of Scotland do any of the witnesses wish to make any short introductory remarks brief these opening remark which is that I think from the Govan Law Centre's perspective we think the intentions of this bill are very good ultimately what the Scottish Government want to do is to simplify and modernise the law with respect to private lets the housing minister herself had said that she wants to ultimately protect the 700,000 folk who are living in that sector in Scotland provide more security and stability and so we think the aims of what the Scottish Government are trying to do are very good indeed the problem is and we've obviously got some time to go into this is in the execution we don't think the bill is currently drafted lives up to those very good ambitions and we hope to be able to persuade you as time goes on that the bill does need to be amended okay thank you for that perhaps I could kick off just by sorry Mr Ryan may I think likewise LSA broadly supports the objectives of the bill clearly there's an increase in demand and reliance in the private sector for housing needs in Scotland we've seen that with the current generation who can no longer afford deposits for buying property and we're seeing it more and more in relation to those who would otherwise be in social sector housing but for the fact that there's not sufficient housing so it's in that context that we say that we appreciate that there is a requirement for improved security of tenure but the bill in terms of its execution as referred to is potentially problematic because we're seeing adequate protection for tenants tenants who have little choice and who would otherwise perhaps be in the social sector and have greater security of tenure I think the key point is that it presently doesn't provide that balance between the rights and interests of landlord and tenant and again that's something that I think we'll be able to go into as we look through the bill okay Mr Sinclair did you want to say anything at this stage? okay Mr Ryan you preempted my initial question which was the same question as the previous panel namely whether or not the government had managed to strike the right balance between improving the security of tenure for tenants and providing the appropriate safeguards for landlords, investors and lenders so does anyone want to expand on that point? just to follow on then there's no issue really with the six month initial term that seems to be a sensible balance for both landlord and tenant and clearly parties can agree a different term if they wish to do so at the outset of the tenancy in terms of striking the balance if we look at the grounds for eviction which again we can go into in more detail I think there's issues in relation to the fact that that there's no room for the tribunal to actually assess the circumstances which give rise to those grounds we've got the grounds where the landlord can give notice of his intent to move in or to sell the property but in relation to the rent arrears ground for example there's no room for discretion and if those grounds are satisfied the tribunal is not in the position to take into account the reasons for those arrears increasing for example it's not in able to take into account any offer that's made by a tenant to repay those arrears and I'm happy to go into that in more detail okay our position is we think that the 16 grounds which are more or less mandatory go so far that they remove any security of tenure for tenants in some respects you could say that these grounds are so powerful and so mandatory that it's the equivalent of giving a tenant a zero arrears contract on their home and I don't say that lightly in our experience one has to understand that there's really two sectors Mr Dill, could you clarify for us in terms of our understanding of the bill the 16 grounds for evictions that we're talking about here and our briefing on the bill suggests that four of these are mandatory and 12 are discretionary you're saying that in effect that all mandatory can just explain that point so you're quite right technically 12 are mandatory and four have got some element of reasonableness but when one looks at the reasonableness requirement that's in there it's really focused and incredibly narrow so for example, if one thinks about homeowners in Scotland or tenants in the social rented sector this parliament introduced a fantastic reasonableness test that requires the court to look at a number of different factors the history, the person's circumstance what's the impact on the eviction of other occupiers on the house children for example, disabled persons it's a fantastic test that applies for homeowners in Scotland that applies for tenants in the social rented sector but in this bill we've got a very, very narrow aspect of what is reasonable in terms of the fact so that's why we say there's very little room for manoeuvre and ultimately in terms of looking at these grounds while I wholly accept that what the Scottish Government's done has said we're going to remove the no fault ground but the problem is we've created so many mandatory grounds that effectively supersedes the good intention that the government had in the first place let's take one quick example if you think about our experience and that's when I said that there's two sectors there's the nice sector where people've got lots of money where they've got a choice and there's the sector for everybody else where they don't have lots of money and they've got no choice in our experience we find that landlords in that latter sector will often just ignore the law, they'll break the law they'll do whatever is required to get their property back these grounds, just looking very quickly at ground one all that a landlord need to say under the bill is that I intend to sell my house in the future and they'll be able to evict and that's going to be that and what's interesting with that ground is that it actually undermines the second oldest act of the Scottish Parliament that's in existence which is the leases act of 1449 which believe it or not is still good law in Scotland and that was introduced because what used to happen was that farmers who grew crops would have a rich land owner that would come and sell the property the land to their mate and they would inherit the crops so that 1449 act was passed so it's always been the case that if you sell the property you sell it with a sit-in tenant in Scotland and one fell swoop this bill would put that act out of the window that's very helpful so I should just correct my earlier question to you I had gone the wrong way round there's actually 12 mandatory grounds and four discretionary grounds that clarification is helpful to Mr Sinclair or Mr Ryan to add on the points that have been made so far in my perspective we had looked at the grounds of eviction as a law society we had felt they were complete the sorts of comments that have been made about those grounds are more policy based than technical and so it's not an area that we are suitable to comment on The Parliament in this Parliament did that promptly in relation to for example the credit crunch and recession by introducing safeguards for homeowners the Home Owners of Death Protection Act means that all cases have to call at court and tenants have that opportunity to appear at court and state their case and the court has to consider reason on this and that follows a range of measures over the last decade or so which are designed to minimise homelessness and I think that's the key concern for example the pre-action requirements were introduced in social sector cases where a landlord must assist the tenant insofar as possible reach an agreement to resolve any issues an eviction seen as a last resort and I think that's something that we have to ensure when we're looking at private rented private rented sector tendencies that eviction is indeed seen as a last resort and the concern with the current current grounds particularly in relation to rent arrears is that it's a very low threshold to that ground being established which would result in a family potentially being homeless Can I just tease out the issue of the no fault ground? Mr Daly you said that you welcome that provision in principle but you worry that the ability to execute that and practice may be undermined by other provisions of the bill but this is something that has been broadly welcomed by organisations representing tenants so clearly they think that it will have some benefit for tenants That's why convener I said that the intentions of the Scottish Government are trying to do it, nobody's got any issue with that but it's in how the bill has been drafted often that's the devil's in the detail and that's obviously where we have a problem In our experience we've heard from the earlier witnesses that where landlords want to get rid of a tenant at the moment they will just use the no fault ground and that's absolutely the case What I'm suggesting to you is that in the future unless we correct this a landlord simply has to say my brother or my grandchild to move in how can anybody dispute that as a matter of practice and I think that we are we're coming at this from defending tenants day in day out and what we see is how these things work in practice so if a landlord under this bill said I want to move somebody from my family into this property how could we possibly defend that because it's an intention within the next three months I don't think that we can defend that and I think that if we have these grounds and other ones like for example I want to refurbish the property in the future how can I possibly argue against that because it's a future intent What are you suggesting in terms of strengthening the provisions of the bill in order to enhance the rights of tenants I think it would be helpful if some of these grounds were removed and we've obviously set that out in our written submission to the committee I think and I fully accept that we can remove some of these grounds and we can modify some of them in terms of having a reason on this test but when it comes to selling the property I think we have a complex problem there because ultimately what's happened in this market is that it's been if you think about Private Intercept on Scotland it's trebled in the last 15 years it's a completely different creature altogether and from 2008 we've seen 40% increase in biotelect mortgages across Scotland so a lot of this market's been fuelled by people buying using biotelect mortgages now it may well be that people will have to sell those properties for very good reasons so I think we need to grapple with how do we enable those landlords to sell properties if they get into financial difficulties but at the same time balance the rights of the tenant so I think that issue is a complex one but I think just giving the landlord that undermines the whole good intentions of the Scottish Government Mr Ryan We think that an amendment to the intentionality test would assist in order that the tribunal is able to properly test that intention I think as presently drafted there's issues there in terms of how a tribunal would assess whether that is an intention that has real prospects of actually coming to fruition and that's something that we support in terms of an amendment in relation to reason on us again I think a lot of the comments that have been made particularly in the last section about the difference between your institutional landlords and your landlord who only has one property could actually be dealt with by the introduction of reason on us because the tribunal could then assess the circumstances of the landlord and weigh that up against the tenant and it may well be that a tribunal would make a different decision for a landlord who has only got one property and multiple properties and could bear the brunt, for example, if a tenant fell into her years for a couple of months but has a proposal to pay it back with the right support, advice and representation so given the tribunal that discretion and I think that we have to realise that we're creating this tribunal and the responsibilities have been transferred to the tribunal where there will be specialist members of that tribunal who will have vast experience of housing law yet at the moment there's a real risk that they're really undertaking a rubber stamping exercise with eviction actions and they will have that ability to really test reason on us and assess having knowledge of landlord tenant disputes to really go into the detail of it and make the balanced decision Thank you, Claire. You've got a short supplementary. Short supplementary and the issue of refurbishment. Is there any definition of what refurbishment might be and what the extent of it would be that would qualify it as a reason for eviction? Not as I recollect from the bill at the moment. I think you've hit the nail on the head. That's the problem that and I can see why the draft person has come up with this, which is because of getting rid of the no fault ground obviously the challenge is then how do we then enable the private landlord to be able to deal with the property in a reasonable balanced way? So it's that balancing exercise and really what I think I'm sort of saying is that the way it's currently drafted is it would be open for abuse and again what I've said earlier is that I appreciate with committees heard evidence from the private landlord sector last week and they sort of paint a particular picture in terms of their sector. I suggest and it's much more complicated that this idea that I'm presenting which is that there's kind of like a tale of two cities. There's the executive who's looking to move for a job and they've got that power of choice because they've got a good income, good credit rating and all the rest of it. Lots of people, we've heard evidence I think from the earlier panel who end up in the private rented sector end up there because they've got no other choice. May well be they're evicted from or all sorts of things, family breakdowns, relationship breakdowns. So I think what we need to think about is at the end of the day, the private rented sector is a business, it's a commercial entity. We should be looking at that sector from the, in my respectful opinion, from the viewpoint of the tenant, the consumer because why is it any different for that tenant to have a landlord who's maybe got 100 properties or one that's got one property? Why should they be treated differently? I think that consumer protection law if I buy a kettle from a wee shop down the road I've got the same protection if I buy that from Tesco. So it's an interesting dilemma that I'm presenting which is who are we trying to present these protections to in what way? Thank you very much, convener. The next question I've got is worded in front of me that's been addressed to some extent so I'm going to replace it with a slightly different question and that is do the witnesses believe there are any reasonable grounds for a landlord to reclaim a tenancy? I don't think there's a real dispute that there can be grounds and there's reasonable grounds for a landlord to take back the property but that has to be balanced with the rights and interests of the tenant and that's the concern. It was mentioned in the evidence earlier that the test is broadly the same as the current regime yes, for establishing the ground but in the current regime you do have that discretion that the court has the court can take into account all the facts and circumstances in making the decision so we're not saying that there won't be situations where it will be reasonable and eviction orders should be granted but the failure to allow the tribunal the opportunity to consider all the circumstances I interpret that answer as being that depends but if I was a landlord who was about to enter into a contract to lease a letter property I would expect some clarity at the outset about what the rules actually were and what I'm getting is a description of a situation where no landlord would know what the rules were at the outset To answer your questions ahead on I would say that if you think about it there has to be the ability to get the property back if somebody is not paying the rent because particularly if you've got a buy to let mortgage that's probably how you're financing the whole deal or if you're running a business how can you run a business without the money coming in so nobody's got any qualms about that I mean oh I think that I've suggested and my colleague Chris has suggested that there should be some reasonableness test in there otherwise it's a sledgehammer potentially so yes, you need to be able to get the property back ultimately if somebody's not paying the rent yes, you need to get the property back if somebody is causing mayhem and chaos with anti-social behaviour but let's remember that sometimes anti-social behaviour is a dispute between neighbours sometimes somebody's got mental health problems they need also again, reasonableness is there to make sure that we don't end up not identifying who's basically a bad person as to who's somebody who's actually not well and somebody who needs help then the final one would be if you need to sell the property because ultimately that may be something that has to happen so I would accept it but you could look at the other grounds and say why have we got this ground 14 that says if the landlord's not registered there's a mandatory ground for eviction for the tenant it's almost like saying so your landlord doesn't bother to respect the law of the land and you get evicted as the tenant I mean, you know that doesn't make any sense let's make these grounds fair let's make them business savvy but to do that I think we'd need to have much more a finessing of the way they're drafted I think the thing is that a wind size fits all approach just doesn't work with the sector there's differences in landlords there's a diversity of landlord-tenant relationships essentially you've got different types of landlords and you've got many different types of tenants with different circumstances so that's where allowing a tribunal to have that discretion to properly weigh those interests and the balance is vital I mean, if you look at, for example the rent arrears ground which is 11 essentially the tribunal must find that the grounds established for eviction if three or more consecutive months rent has not been paid and a total arrears equates to one month so that's a very low threshold but as currently drafted there's issues that a landlord may not decide to go ahead with eviction action at that stage but the ground will still be established two years later so you could still have to retaliatory evictions a couple of years later because that ground has been established because the tenant's been in default at some point in the past so that's something that has to be looked at but presently in the current regime if it's a mandatory ground for eviction if three months rent arrears in total so at the moment it's time to say the rent's £500 a month if over three months you're short of your rent by even one day the total as long as those arrears equates to £500 the tribunal must grant the eviction order unless there's a delay in payment of housing benefit but even there, the delay in housing benefit is a delay by the housing benefit office it doesn't take into account that you may have a tenant who's come into health and hasn't supplied the right information to the housing benefit office and so the fault, so to speak, is with them but there's justifiable reasons and I think the key thing as well is that obviously from our experience each week we are representing around 30 tenants in the eviction court at Glasgowshire and in the main they will be social sectoral tenancies but with appropriate advice, assistance and representation most of these issues get resolved and the difference between a represented tenant and not can be vital and we look at the funds and the government have put in place in relation to welfare reform ensuring there's appropriate advice so we're not saying that this is a tenant's charter we're not saying that the introduction of reading was a tenant's charter that means a landlord cannot take the property back it's putting in place the appropriate safeguards, advice, assistance and there's a real opportunity to achieve that Alex Regardless of whether you think it's a good thing or a bad thing it's been suggested to us that the no fault clause has been used in the past to substitute for some more difficult cases on grounds that already existed and we've already mentioned the issue of antisocial behaviour we've had it put to us by the representatives of the landlords for example that requiring a landlord to prove antisocial behaviour because alternative grounds will no longer exist could be very difficult because neighbours will be unwilling to give evidence and as a consequence it may result in additional friction between landlords and tenants in cases like that I'm not convinced that that would be the case and the reason I say that is that when you look at the actual drafting of the antisocial ground, which is ground 13 in the bill it's a mandatory ground all that one has to establish is some antisocial behaviour and if one establishes antisocial behaviour then the first tier tribunal would have to grant an order to eject the reason it's so complicated is because often the eviction actions are able to be defended on the grounds of reasonableness when it comes to antisocial behaviour so for example there's lots of cases that one sees where somebody for example has been engaged in taking drugs on the premises let's say or even in some cases dealing and what happens is by the time when they get prosecuted and they perhaps are fined or perhaps even go to prison and what then happens is by the time the case gets into court they then defend it on the basis that they've modified their behaviour and they're able to say that they've stopped doing all these things so it becomes an issue of is it reasonable to evict that person now the way the antisocial behaviour's ground is drafted in this bill is just simply mandatory so I think the way that's drafted isn't going to create that difficulty that you're describing Mr Johnston but what I would say is that if we don't have some checks and balances on that ground then the danger is I mean I've seen over the years people who their neighbours has never liked and they just decided to put in complaints about their neighbour saying that they did this and they did that now you could find yourself in that situation being evicted because they've got more evidence and you're not able to defend it on reasonableness they can present the evidence and it is believed so I think we just have to think about at the end of the day yes, if somebody is genuinely antisocial and they're being a very unpleasant person and causing grief and misery then yes, they need to be dealt with they need to be removed but the way that's currently drafted I think we could end up having people that hesitate to say well ultimately innocent people being removed I think there's a further issue with the criminal behaviour and social behaviour around there was reference in earlier sessions so we can actually envisage a situation where the perpetrator of that domestic violence is convicted of a domestic violence offence which actually gives rise to an automatic ground for eviction for the person who's the victim and that can't be the intention of Parliament in that case so that's something that I think requires consideration It's just a point of clarification Mr Dill, you said that the antisocial behaviour ground is mandatory where last week in evidence we heard that it was discretionary and therefore those who were given evidence were asking for it to be put to a mandatory term so we're just wondering why you think it's already mandatory I mean, I'm just looking at paragraph 13 of schedule 3 and it simply says that it's an eviction ground that the tent is engaged in relevant antisocial behaviour then it sets out what it means by antisocial behaviour and and that is that so that's my understanding also that is mandatory but again the experience of defending antisocial cases is that it is a low threshold to actually establishing antisocial behaviour two acts that may or is likely to cause someone alarm and distress creates the ground being established so often the cases are defended by reason bonus and often you'll find as was referred to in the earlier session that the tenant who is accused of antisocial behaviour may have their own issues with the right support that can resolve the problem as well so we would support for the conduct grounds that reason bonus should be in the bill I think that there might be a slight blurring between mandatory and discretionary in terms of what they actually mean in the real world but the biggest risk for eviction for antisocial behaviour is that it requires a finding of antisocial behaviour so if there is antisocial behaviour found by the first year tribunal it is a mandatory ground but there is still an element of investigation that is required and so there is a a step that makes it not entirely mandatory but not discretionary sorry that's rather badly explained it's not a tick box and evict there's a process of investigation I knew there was a reason why the law society had to be here to meet me I may just have peaked I'm sure that's not the case sorry Alex, Adam wanted to come in I was just thinking perhaps there has been some dispute about which of these grounds are mandatory and which are discretionary we had the earlier exchange that was well for mandatory and for discretionary is that your interpretation of these grounds or was your explanation of the antisocial ground is that applied to all the grounds or not I think the easy way to look at this is that you only have an element of discretion where the word reasonableness is mentioned in one of the paragraphs and taking John's point all the other grounds say you need to establish a fact i.e. I intend to sell or antisocial behaviour John's right to say that that means that the tribunal has to have evidence that that and has to accept is that credible evidence that that fact is found and if it is then it's eviction when we have other grounds to talk about is it reasonable the discretion that we are referring to so you're absolutely right in terms of that split but the point I'd made at the very outset is that when you look at the reference to how reasonable is used it's only reasonable with respect to the establishment of that fact whereas the point that I was making is that when you look at the homeowner on debt protection Scotland Act 2010 or the house in Scotland Act 2001 in fact it's the same in both bits of legislation which requires the court to look at a number of factors and then consider all the circumstances in the case and we really don't have that even in the reasonableness grounds in here so that's why I would say that this is the pendulum in this bill has swung right to the landlords and I guess you would say well the price for that is the removal of the non-fault grounds and ultimately that's a price to pay that's too high if ultimately it's swung too far I just wondered if Mr Sinclair could expand a little bit on the definition you gave with regards to the entity what Mr Daley seems to be saying or in yourself are saying there would be an investigation up until the point where a finding was declared as it were, it's either antisocial or it's not thereafter Mr Daley would argue well there needs to be a look at the circumstances of reasonableness of eviction on the basis of that finding is that right exactly but we would argue that that should be the case yes okay so would that apply to other grounds as well Mr Sinclair in terms of explain about the antisocial ground that the tribunal has to make a finding and there is an investigation up to that particular point that's probably a point we were best coming back in detail on writing on but I would just for the purposes of the stuff this morning point out that the eviction ground 13 antisocial behaviour by its nature is an assessment of facts that are theoretically capable of objective determination but in practice probably are not if you compare it with eviction ground 1 the landowners and tent landlords and tent it's inherently a much harder test or much harder concept to test by the tribunal and so there is a difference in effect in the various mandatory terms Alex convener of the 16 grounds for terminating a tenancy only 5 would be available during the initial period of a lease now some of the groups representing landlords suggested that they would like more of the grounds for terminating a tenancy to be available to them in the initial period what do you think about the 5 grounds that have been singled out to be used in the initial period and do you think that the arguments for some of the other ones to be brought into that period I think our position is that given that the intention of this bill, very worthy intention was to simplify I think having the initial tenancy and then having another kind of your other on-going tenancy I'm not quite convinced that that's necessarily simplifying I'm not quite convinced that it would be simpler to have a tenancy and then to have certain grounds of eviction that would apply across the board because if you think about it at the end of the day when I said I answered your question earlier Mr Johnston about you had asked is there circumstances where somebody should be removed and we talked about where there was very serious social behaviour rent had not been paid and there was no particular reasonable explanation and so on and so forth in those circumstances that should apply obviously as a general proposition what's the whole point of creating the initial tenancy and so I suppose that's kind of answering your question by saying not convinced that the aim of simplifying is done is achieved by that complexity I'm repeating myself if there is built in that discretion then that's something that should be no kind of assessment in terms of that initial period whether it's reasonable that somebody who's just recently entered into a tenancy should lose it for whatever the purported ground is Alex, any further questions? Mike I've got three questions but with your indulgence I'll just wrap them all up into one question because some of the territory has already I think been well covered but just moving on slightly in our conversation to consider any concerns that you might have about wrongful the wrongful termination provisions within the bill whether these are adequate whether they present sufficient moral hazard the ability of tenants to raise a competent action whether you feel third parties ought to be able to do that on behalf of tenants and then just looking at the other side of the coin you know, well the new tribunal improve access to justice on behalf of landlords or for landlords so just be interested in your thoughts in this general area I mean, in terms of the wrongful provisions you could see what the bill is trying to do because you've got all these grounds in schedule 3 which are all, well many of them are based on intention which we've talked about already very difficult to grapple with you can see that that's being realised by those that have drafted the bill and they've obviously come up with this as an idea to counterbalance it now in my experience I possibly see that really having any teeth or working and the reason I would say that is because let's say for example a landlord does lie to the tribunal and says I'm going to get a member of my family into the property and really that's just an excuse to get rid of the tenant for whatever reasons that we've talked about maybe they just didn't like the tenant or they were late in paying in that circumstance it would then be incumbent upon that person, the tenant you engather the evidence like a private detective to be able to then prove and go to the tribunal that the tribunal had been ddupt now if you think about what happens when somebody ends up being evicted and typically if they're in that private rented sector that I described at the outset which is you've got no choice and you're pretty desperate you're not going to be doing that in real life you're going to be saying where am I going to live I'm going to have to find somewhere to live six months later and thought oh if I'd only realised that I could have but I think at that point in time it's a bit of a crisis you aren't going to do that and so I think the other issue about that is one is I suppose I'm saying the practicality of that coming to the light of tribunal can't see happening and the other thing is the fact that it's only three months equivalent of rent is crazy because if you think about it what we've got at the moment is that if somebody sort of lied really without proper I mean it's complicated it's really kind of like the equivalent of no due process then you'd be looking at unlawful eviction you'd be looking at statutory damages which could be many thousands of pounds and so setting it at the three months I mean we saw people some folk who were running HMOs in Scotland who were happy to not have a licence because the fine was such that they thought I'm making so much money from this I'll just pay the fine and the level is completely wrong but I would go further and say the idea that that would work in real life I can't see possibly working but we could remedy and cure all this I think the only thing we need to do to make all this work and deliver the Scottish Government's aims is to get the grounds of eviction right and then everything else fits into place thank you any other comments the sanction isn't high enough if the grounds are to remain as they are currently there's a sanction for landlords that the courts can award up to three times the deposit if they don't comply with any of the deposit regulations and we're putting a similar kind of figure for being wrongfully evicted and losing your home and all the incumbent costs that go along with that trying to find another property find a deposit and so on so it seems to me that it wouldn't be a real deterrent to a landlord to a bad landlord to utilise a ground incorrectly on the basis that at most they could be penalised for three months and that's if a tenant does follow up and make the inquiries and make the application and so on so that's a concern but yes if the grounds of eviction are properly addressed and there's a discretion there where the court, the tribunal can weigh up with the balance then that may well resolve having to look at at the end of the process in relation to your point on accessible tribunal is appropriate for both landlords and tenants I think the key from the tenants perspective is that there is an opportunity for advice assistance and representation and that legal aids available which is not currently available for the first tier tribunal because we can see that some of the grounds there will be disputed either in the facts or if there is a reason for this aspect to it and tenants who are at risk of losing their home there is an extreme form of interference with the right to respect for a home should have the availability of appropriate representation but on the face of it I think an expeditious process such as a tribunal to resolve disputes is a positive aspect but it has to go hand in hand with fundamental principles right to fair hearing and access to that Just one brief further question to put some perspective on the matter of this antisocial problem Just in terms of criminal justice generally and the kind of typical penalties that you get for bad behaviour how bad a boy would I have to be in order for a judge to say to evict me from my home and not just me because I suppose I could sleep under a tree or a bush but my family I just wonder are the provisions within their general body of law criminal law for dealing with antisocial behaviour not sufficient to deal with this should be trying to deal with it at all within the scope of this bill You raised a really fascinating ethical dilemma because you could think about what you've described as double jeopardy and the courts have grappled with this in terms of the social rented sector So at the moment you often find people that have been taken to court for eviction for antisocial behaviour in the social rented sector possibly have been to prison or possibly certainly have been found guilty and it's often drugs it could be other things but again certainly in our experience the number of these cases is very small but the impact that the small number have is much bigger than the number because it's such a huge impact potentially on a neighbourhood so the question is should that be the case well at the moment the courts certainly take the view that applying the reason on this test even if somebody has served time or paid a penalty that's not enough to get them off the hook and not being evicted but you're sort of saying should that be something should it be taken to be that you've paid your you've done the crime and done your time should you then be evicted because you suppose what you're raising the question now I suppose it all depends on if the person then comes back and continues in that course of behaviour so I mean it's a complicated issue that you raise and I'm not giving you a clear answer because I'm actually thinking in my head do you know what I can imagine because the problem is community law centre I mean we're I mean ultimately we are asked to help the victims and the only times that we defend anti-social behaviour cases is if we think it's somebody who has got mental health problems, if we think it's actually a criminal sort of case, we'll refer that on to a criminal defence firm because we see ourselves as being different because we're a community law centre we live for the community so I'm just thinking about your question I think you raise actually really quite deep complicated issues of justice thank you very much that's a good question it's a complex area because you've got a whole range of different behaviours or alleged behaviours in criminal activities that may occur there's obviously your common types of action you get in the share of court another tool that's available to deal with anti-social behaviour is local authorities can seek anti-social behaviour orders from the court and that's an avenue that perhaps would allow support to landlords if you're talking about landlords who will only own one property perhaps room for tying that up with what the local authority can do and whether there's resources there to assist in that case no further questions thank you Mike, clear a couple of questions you mentioned the situation of someone who's in domestic violence which did come up in the previous session I just wondered if you had a feeling that the six month initial tenancy could be a problem for people who need to vacate a property for whatever reason I think that the easy solution to that is to have to create into the bill with proper safeguards the ability to specifically deal with that category of occupier because it seems to me that that would be the most sensible thing to do and it can be done with proper checks and balances but I think you raised an important point which is that if somebody only needs to be in a particular place for two months or three months then it seems it doesn't make any sense logically for the bill to prevent that so I think consideration should be given as to how that could be allowed to happen with the checks and balances to make sure it's not misused if you're talking about a situation where you're fleeing a domestic violence situation then perhaps the bill could incorporate some kind of application to the tribunal to allow an early termination of certain situations where that is not being established. The evidence session last week and part of the session earlier Councillor McGregor was saying that what is a will, there's a way. Is it your experience that landlords in circumstances that are reasonable and flexible? No. Again, you have to look at the sector. The sector is you've got a lot of people who are just renting one property and all they want and for perfectly good economic reasons is that money to come in and so their approach will be very different to say a company that has a number of properties but really what I've said in my evidence is that very much the experience that we have working across Glasgow is that the clients that we see are incredibly vulnerable they don't have any choice they are powerless and we produced the report and linked it into the evidence that we submitted that showed that from our survey in the south of Glasgow that the problem that you get in terms of the law being broken and people not enforcing their rights is because they don't have any choice and so they don't want to upset their landlord because they might not have anywhere else to go so I think that's something that we need to bear in mind that yes there are some people that are able to live in a very nice flat and get everything done for them repairs are done the next day but for a lot of people in Scotland that's not the reality of what they have to endure My second question was in the area of student accommodation and landlords that are in the student market that the bill is reasonable in the way it's approached particularly I'm thinking of the institutions having a separate type of tenancy to other landlords that are in that space providing multiple occupancy temporary accommodation We are the losses that I have We did have concerns about that Currently the student accommodation sector is provided both by universities other higher education institutions and also by private companies and sometimes they are provided by private companies in partnership with universities where you have a nominations agreement where the private landlord will undertake to provide a set number of beds for placing by the university and so we do not consider that it is going to be good for the market to have a restriction on whether it's a PRT or not, based upon the nature of the landlord rather than the nature of the tenant Sounds a very reasonable approach, we would agree Thank you We'll move on Dave Can I ask the witnesses what your views are on the bill's provision around rent increases Mr Daly Again This is an area where we thought what the bill is trying to do is very good The provision with respect to pressurised zones I think it was Spice that produced a briefing where we saw that in Aberdeen and Aberdeenshire and also I think Lothian that rents had increased in a four year period 10 to 24 in Aberdeen and Aberdeenshire by almost 40% and in Lothian area by 17.2% What's interesting is that the Spice briefing talked about the comparative consumer price index increase was 11.7% What I would say is that that's CPI that's everything thrown into the basket but the Bank of England's base rate has been 0.5% for a very long time The fact that CPI goes up by 11% and rents go up in Aberdeen by 40% there's an argument well should it only go up by 11% I would say well actually how's it going up anything if the Bank of England's base rate is 0.5% and the land has got a buy to let mortgage that's linked to that So I think what the bill is trying to do would be very helpful in terms of if you get a rent increase being able to take it to the rent officer We've suggested in our evidence that that's sitting currently being overcharged at the moment so we've suggested that that provision should allow a tenant who has got a prima facie case that they think they're paying more than the market rent to be able to take it to the rent officer and the final one thing I would say as a note of caution to the committee is that all these provisions aren't really going to help when it comes to an increase in the Bank of England's base rate because if you think about it if that happens and we're told that it might go up next year incrementally hopefully if it does go up it is incremental but if that goes up what you're going to find is the buy to let mortgage market those folk are going to pay more money now what are they going to do they're going to put their rents up and the problem I suppose with the bill is that because it's looking at a market test if the market goes up then the provisions in the bill aren't going to help and it's going to be the tenants that have to pay at the end of the day that scenario but it's something to think about You've predicted Mr Dale might my second question so I'll just extend that courtesy to the other witnesses I would say though on CPI you'd have heard the earlier evidence session that ironically CPI doesn't actually include housing costs as a current index and I think last time I looked which was yesterday CPI is actually running negatively currently to reflect the inflation level but that be as it is may it is a system of protecting tenants in certain areas and I think I said at the last session that Aberdeen and Aberdeenshire yes you're right we're very high but I think in the last year and a half it actually fallen away because of the higher oil price just to correct my actual comments so there's obviously regional variations across Scotland but the key point is that local authorities must push for rent pressure zones but within a local authority is there a danger of a flight of capital as you had heard my earlier question from one part of that local authority area to another I'll quickly answer that I noticed from the official report for last week's evidence session before this committee that private landlords were trying to do the bogeyman that waived the the threat of that this bill is currently drafted would drive out investment which I find staggering because I think it's currently drafted it's a Christmas wish list for private landlords but even if we said that the Parliament was to swing that pendulum a little bit closer to tenants would that drive out investment would investors move from different local authority areas I'm not convinced that they would and the reason I say that is because if you look at our current market of housing we've not regained the position that we were at before the bubble burst in 2007-2008 so the idea that people are going to flood the market is you have to think about these people that have bought these properties are investors it's an investment so the idea that they're just going to suddenly sell the property on mass to a market that would then respond by saying well if there's such a supply we're going to pay you less so I think that we need to be realistic and not be basically allow ourselves to be kind of take on these kind of assertions that somehow this whole sector will pull out its investment I think that's an absolute nonsense it's not going to happen market impact is going to be very very complicated unfortunately not something that a law society knows anything about the one representation we did make was that if in the pooling of information and evidence by the Scottish Government to decide whether or not to create a rent control zone we felt that there should have been a slightly higher benchmark for demonstrating the weight of evidence in favour of it but I think it is something that will not ever be done lightly the potential consequences will always be unknowing so it looks like something that is only ever going to be kept in reserve for a very very dark day I think that you'll be aware that the initial triggering is by the local authority itself so local authorities across Scotland the 32 authorities will take this very seriously what's not clear and the witnesses is obviously the Scottish Government make the final decision but presumably they have to weigh up the evidence as well they're not just going to rubber stamp an application but there's not much in the act about this but if witnesses have further information I would be glad to be enlightened on that point Mr Sinclair in terms of the act the Scottish Government is under an obligation to consult and so yes the trigger the first threshold is from the local authority but it is the Scottish Government that has the duty to consult to decide how and where and when to consult and it's at a practical level will be quite difficult to work out who to consult from landowner tenant but also from potential landowner potential tenant and I think the other issue Mr Sinclair is that the area can be as small as in the state or a village or a town or indeed could be the whole local authority area which would be obviously a big decision which again if you're tracking through market areas within any given area market areas can be incredibly sensitive down to sides of streets streets and so it will never be an easy thing to get right but that doesn't mean it won't be necessary Mr Ryan, just to remind you because we've had a few diversions my question was around rent increases and we've moved on to cover as well the rent pressures on proposals I think broadly we support that there is control or the opportunity to control rent increases I'm not really in the position to go into great detail in relation to the measures in the bill I think just from the perspective of the tenants that we represent who may be in receipt of for example local housing allowance housing benefit I'm interested in to see the link between the capped levels that apply there and the rent control mechanism because often you find that in any event because of the rents in the private sector you subsidise the local housing allowance with the income benefits employment support allowance, job seekers allowance and so on so essentially the local authorities are only able to capped the amount of benefit that's given to tenants to pay the rent so I've just been interested to see that that's taken into consideration in the rent side of things I suppose the general problem if your rent is excessive anyway then the fact that you've subsequently got a cap or you've subsequently can get a rent officer to assess a fair rent it's not necessarily going to help you is it Mr Daly? Technically at the moment short assured tenants can apply for a fair rent it doesn't really happen and the reason it doesn't really happen in real life is because you can just be removed under the no fault ground and then somebody else could be brought in and nobody's the wiser if a rent had been fixed I'll keep going back to some of the practicalities that when we create a new system we always have to bear in mind is it really going to work in practice I mean I certainly think the provision of the pressurised zones is something that's a really good measure to provide like a safety valve it'll be interesting to see how it develops and as you rightly say it's going to be up to local authorities to kind of take the initiative but I do hope that local authorities will take that initiative Do any of the witnesses wish to add anything on that particular question? My final question then convener is there a need to improve the operation of the private landlord registration scheme? Mr Daly? Yes It's interesting that the private rented sector lobby if I can describe them as that as a group have certainly been writing into newspaper saying that Scotland's the most heavily regulated private rented sector in the United Kingdom which I was flabbergasted when I saw that assertion because from our experience as practitioners advising and representing tenants there isn't really any regulation in the private rented sector there's the private registration scheme which was introduced by the ant social behaviour Scotland Act 2004 and local authorities would tell you that when that was introduced they had this mammoth task of actually finding out who were all these people because nobody had ever done it before so a few years went by where they were just mapping Now we've got cases in say Governor Hylian Glasgow we've got almost like a dozen cases where we're pursuing unlawful evictions actions against private landlords who've just somebody's went out to get a pint of milk they've come back and they've discovered and so we've taken these folk to court and we're suing them for statutory damages meantime we say to the local authority but surely these people aren't fitting proper to be landlords and you might think that would be a bit of a no-brainer and in some cases we've got the Procurate Fiscal Service doing prosecutions in the Sheriff Court against these folk what the councils often say is well let's wait until the end of the criminal proceedings really I mean in our experience the private registration scheme hasn't really worked in the way that the Scottish Parliament wanted it to work I heard the evidence from the witnesses earlier, not enough resources I'm not convinced it is ever going to be capable of working in the way that we need it to work what we need is a body that's got teeth that's got legal powers and it's able to do the strategy across Scotland Mr Sinclaw I have no comments on that Mr Ryan? I think I would echo that there's this and there doesn't appear to be any teeth to that registration scheme in terms of the bad landlords that we deal with who are unscrupulous and you don't get a sense that there's a process that can be followed by a local authority to look at that whether that can be developed further with this bill, I don't know I notice as well in terms of the eviction ground that is an eviction ground that the landlord has not registered under that registration process so if you have a tenant who wants to raise that as an issue they could be creating their own demise so to speak for the run back thank you for that okay thank you for Mr Sinclaw on the evidence from the Law Society on page 11 of your written evidence you referred to in section 44, restriction on applying during the notice period and this is going back to the issue of grounds for eviction and you say that in the circumstances where the landlord applies for notice to evict a tenant where the 84-day period applies could create a disproportionate financial burden one assumes on the landlord I just want to understand what your understanding of the bill was in terms of the circumstances where the 84-day period applies as against the 28-day period because I think it's quite clear that there are five grounds in which the 28-day period applies just wondering what your understanding was of the 84-day period that you think would then create a disproportionate financial burden on the landlord so in terms of the the bill is very clear that the 28-day period would apply in very specific circumstances where the tenant is not occupying the left property as the tenant's home where the tenant has failed to comply with an obligation under the tenant saying that the tenant has been rented ears and that the tenant has a relevant conviction and that the tenant has engaged in relevant antisocial behaviour but I was just so in those circumstances 28-day period applies but there's a 84-day period applies in other circumstances I was just wondering if you knew what those were or what your understanding of which were If we could come back to you in writing on that I think the general thinking was applying it to a very small scale landlord that any period of recurring rental delay even if it doesn't hit the rental ground for eviction may be difficult and I think it is one of the issues of the act is how you have a single act that applies to the wide variety of tenants and the wide variety of landlords that it applies to Thank you I mean a written clarification would be helpful thanks Alex Dugver Is it really just a comment on the the system of regulating landlords? Is it not a classic piece of legislation in the mould that the good landlords buy in the bad landlords look the other way and consequently it just can't work? I think that's a fair analysis and I think the difficulty is in order to deal with the bad landlords and we need to I mean in our experience there's a lot of bad landlords I mean don't get me wrong I'm sure there's a lot of good landlords but just in terms of the ability to deal with them that does require a lot of effort and I think one of the I mean one of the greatest examples of how the system's not worked is that it's been a criminal offence to unlawfully evicted tenants in Scotland since 1964 how many prosecutions did you ever hear of for a time we discovered that the police weren't actually recording them as a specific category and that's now being changed thankfully and so there's very little people being sued for doing this there's very little people being arrested I mean I had somebody just the other week who was referred on to me bizarrely through Twitter it was an evening at the weekend and it was a young veterinary student who had went back to her flat on a Saturday night and discovered in Glasgow that she'd been unlawfully evicted and she contacted the police and they said to her it's a civil matter nothing to do with us and I was to give her some advice to the medium of Twitter and she went back and spoke to the police and I got them to actually go around to the property and sort of things that so the fact that we've got the police getting it wrong goes to show you that this whole sector has been in need of regulation for a very long time but tightening up on the people who have already registered won't actually achieve very much well no because I mean the people that have bought in things properly are not the problem Okay Do members have any final questions? In that case Do the witnesses have any further comments you'd like to make about any of the other provisions in the bill? This is your last chance In that case can I just just remain for me to thank the witnesses for their very comprehensive evidence this morning and I'm now going to pause briefly to allow the witnesses to leave the room This meeting of the committee we now move on to agenda item 3 consideration of petition PE1539 and can I welcome the members of the public who've joined us in the gallery this morning The committee will consider petition PE1539 by Ann Booth on housing associations to come under the Freedom of Information Scotland Act 2002 This is the committee's second consideration of this petition attached to Annex B of the note from the clerk as a letter from the Scottish Government in response to correspondence issued by the committee also attached to Annex A In this letter the Scottish Government has confirmed that it will now formally consult the registered social landlord sector on extending the Freedom of Information Scotland Act to registered social landlords in 2016 with a view to extending the act in tandem with complementary changes to the Scottish housing charter Can I invite comments from members? It seems to me that the petitioners are basically making significant headway with their requests and the Scottish Government seem to have accepted the case and that's why they're moving to the consultation on it so I don't know what's required of us here today other than to to note that and to welcome the Scottish Government section There are two options available to the committee we can agree to close the petition or to keep the petition open so I would invite members to consider and agree whether it wishes to take any further action in relation to the petition Are there any comments from members? I would be reluctant to close it at the minute because we don't have a definite answer of where this is going because we've seen significant progress from the Government on their initial response to it but we don't have a conclusion this isn't an answer to the person's petition they ask for a specific action to be taken it might be after consultation that that's the case but unfortunately we don't have that answer yet and I think I would be reluctant to firmly say well that's as much as we're doing and getting involved I think we have to wait for the Government's consultation what they find and come back to us again Are there any further comments from members? Are we likely to get any action from Government before the election next year because it's clear there's issues about petitions overlapping election periods clearly along with the development and I'd like to see this petition succeed it's a good petition and as you know I'm a great fan of the petition system but perhaps you could give us some advice whether you think it's likely to get any other action this before Touching on one of what is really the key issue is that we would not expect the consultation to have concluded this side of the election and therefore it would have to be carried over into session 5 which I think we would find it difficult to justify but I'm not wishing to pre-empt the decision of the committee I mean we've got processes in Parliament I think it would be a disgrace frankly for this Parliament to stop a petition just because the session ends not if you let me finish convener if you let me finish because I haven't made my point yet it would mean that the person hasn't got an answer we've taken it to the Government and because of time scales which the Government have had ample opportunity to get back to they have gone to consultation and therefore because of the Government's response on their time scales the petitioner doesn't get the answer they require I think that would be unfortunate for us to take a decision on I think that there are a range of views on this issue I think there is no suggestion that the Government has behaved unreasonably in terms of the process that has been adhered to to date I'm implying that it is I say that it's unfortunate if we decide to end a petition based on time scales based on parliamentary sessions rather than the merits of a petition because those are two different questions do we agree with the merits of a petition that's one question or unfortunately the time scales as Dave has made the point don't allow us to make any decisions because we have to close it anyway because we can't take it to session 5 those are two separate questions that will be asked they're not the same one I think that the issue that we should be aware of as a committee before taking any decision is that of course it would be entirely open to the petitioners to bring forward a new petition as a parliamentary session should they so wish should they feel that they should have not been dealt with sufficiently through the consultation process so that's certainly an option that would be available to the petitioners Mike I was of the understanding that the Government response in opening a consultation was exactly what the petitioners were seeking and I'm therefore wondering what point is there in leaving the petition open if the petitioners have achieved what they were seeking reasonably achieved that what merit at all is there in leaving it open it was to add housing associations to the freedom of information request it wasn't to ask for a consultation on it it was to add the further point that before it would act in the manner requested by the petitioners it would simply be with a view but before the Government would act it would be normal process and procedure for the Government to have a consultation to examine the issue thoroughly to discover whether or not there were any unintended consequences and indeed to give a thorough exploration of the whole issue and that seems to me only right and proper before the Government of any shade takes any action and I think it would be unreasonable for petitioners to think that they could basically force Government into an action that could be undertaken without such a consultation so I'm really not quite sure what we're gain here in keeping this petition open I don't... I'm not... I can't understand what's gained Can I bring in a former convener to ask the committee who might be able to shed some light on these matters later? Thank you, convener. Certainly my experience over four years was when we were looking to close a petition certainly if the petitioner had said that we're very happy that our objectives have been reached I'm happy that the Petitions Committee closed it then on that basis I certainly recommended to the previous petitions committee that they do so and ask the class if they could advise us on whether we could Our procedures don't... I know we have the petitioners in the room but our procedures don't allow us to actually invite participation from the petitioner this morning so I think the formal process is if we want to defer a decision, we could write to the petitioners and ask them whether they were content to close a petition or to keep it open and then we'd be able to make an informed view with the petitioners I think that's an entirely reasonable suggestion I appreciate that Siobhan is seeking to defend the interests of the petitioner but it may be that we're going beyond the wishes of the petitioner in this case but we need to clarify what the... You've missed the point completely, convener that's not what I'm doing I'm asking for the process the petitioner asks for one thing what the Government's response is entirely different that's what I'm asking for I do understand the point you're making I just think that it's entirely reasonable if the committee wants to take a view based on what the wishes of the petitioner have to do Absolutely, I'm not disagreeing with that in the slightest I think we're at cross-purposes but you just decided to have another go so that's fine I'm not quite sure what point you're making now Okay Okay, in that case are we agreed that we will write to the petitioner and ask for their views on whether or not to close the petition or to keep it open Thank you In that case we now move into private session and I'll close this meeting off Sorry My apologies Fourth item for today is the consideration of a negative instrument the private rented housing panel tenant and third party applications Scotland regulations 2015 slash 369 Paper four summarises the purpose and prior consideration of this instrument The committee will now consider any issues that it wishes to raise in reporting to the Parliament on this instrument Members should note that no motions to annul have been received in relation to these instruments I now invite comments from members The DPLR committee made any comment on the instrument I'm not aware of any comment having been made by any other committee of the Parliament In that case Is the committee agreed that it does not wish to make any recommendation in relation to these instruments? Agreed I now move this meeting into private session Close this meeting