Advice from the TFC on Completing Amnesty Agreements
It is clear that, for a variety of reasons, a significant number of amnesty agreements were not finalised by 12 December 2020 and that, as a consequence, a significant number of formal amnesty notices were issued on behalf of tenants.
Concern has been raised about the implications of Covid restrictions on the ability to finalise agreements where a field inspection is required, while complying with the time limited legal procedures that follow from the issue of an amnesty notice and with the aim of avoiding the issue having to be determined by the Land Court. This should still be possible with a bit of imagination on the part of both sides.
Field inspections are still possible if the travel and meeting outdoors exemptions can be respected and if both parties are comfortable with doing so, but should be avoided wherever possible, in line with Scottish Government guidance about working from home unless this is not possible.
Technology can be used if both parties have basic IT skills and equipment. Seeing and discussing a claimed improvement on the screen of a smartphone, tablet or laptop may not be as good as a meeting on site but may be sufficient to satisfy the landlord that the claimed improvement meets the eligibility criteria. This can be done in real time or after submission of an online video by the tenant.
Where an amnesty notice has been issued, the landlord has two months within which to decide whether to object or not. If a site meeting cannot be arranged or agreement cannot be reached for other reasons in that period, the landlord should issue a notice of objection as near to the end of the two month period as possible, while explaining to the tenant that this is being done to protect the landlord’s position but that it is hoped that agreement can be reached in the following two month period within which the tenant has to decide whether to apply to have the matter considered by the Land Court. If agreement still can’t be reached by the end of the second two month period, the tenant can protect their position by applying to the Land Court but also has the option of sisting the application in order to provide more time for discussion.
With good will on both sides therefore, it should still be possible, despite the Covid restrictions, to reach agreement without the need to refer the matter to the Land Court and without prejudicing the position of either party, albeit that reaching such agreement may take longer than would otherwise have been the case.
Visit our related webpage for more information on the Amnesty on Tenant's Improvements.