Pre-action protocols and seeking repossession of private rented housing on rent arrears grounds

Pre-action protocols and repossessions

As a landlord, if you want to end a tenancy, you must do it legally. Your tenants are protected by the law against harassment and unlawful eviction, so if you (or a letting agent acting on your behalf) do not follow the correct steps they may take legal action.

The process for ending a tenancy, and the reasons you are allowed to bring a tenancy to an end, can be different depending on what type of tenancy your tenant has. It is important that you use the correct procedure when you end a tenancy – if you do not do this, you may be breaking the law.

• Read more information on ending a tenancy.

As this guidance is for the pre-action protocols (PAPs), this section will only focus what could happen in relation to the rent arrears grounds for eviction.

As highlighted throughout this guidance, the aim is to sustain a tenancy, as far as possible, so that tenants can remain in their homes, if that is what they want. So the focus is on working towards a payment plan to address the arrears, whilst maximising the tenant’s awareness to access any financial support they might be entitled to. This could be awareness raising, which as a landlord, you are in a unique position to do.

As an illustration, this is a scenario of how you, as a landlord, could help, and ultimately (and hopefully) avoid the need to carry out the eviction action.

• landlord becomes aware the tenant is falling into arrears, and it is not typical behaviour for the tenant (eg. they might occasionally be a few days late, but do pay their rent)
• get in touch with the tenant. If you wish, you could send letter 1: engagement and rights. This includes links to where a tenant can get help and advice, as well as their rights.

You might want to get in touch with your tenant again, if you get no response, and perhaps try different ways to communicate with them. Remember to keep a record of your efforts to get in touch with the tenant and the ways you have tried to engage with them.

• if the arrears reach the levels and period of time lapsed, as described by the relevant tenancy types – as a landlord you will know which tenancy type you have given your tenant – you can serve a Notice to let your tenant know that you are seeking to recover the property. Even if you do this, you are strongly urged to engage with the tenant to try to come to an agreement to avoid eviction. This might include rent reduction or write-off of some of the arrears and you should keep records of this, so that both you and the tenant are clear. You should try to work with your tenant to come to a payment plan to address the rent arrears, and continue to point your tenant towards the range of financial support which is available and letter 2: engagement and plan includes links to where a tenant can get help and advice, as well as suggest a payment plan.
• at any point, the tenant might have addressed the arrears – by paying the due sum and have reached a more stable income, eg. through accessing Universal Credit, such that they are able to pay their rent going forward. Should this happen, you may wish to withdraw your Notice for eviction – and the process depends on the tenancy type. Please let your tenant know you are doing this, as this will be a very stressful time for your tenant.
• if your tenant returns a completed template on their income and outgoings, following on from the Second letter, they are seeking to agree a payment plan with you to address the rent arrears situation. If you accept the proposed payment from the tenant, send the tenant letter 3: agreeing a payment plan. Again, this includes sources of help and agreeing a payment plan request. Please remember to send TWO copies out – so that the tenant can keep one for their records.
• alternatively tenants may wish to use an independent intermediary, details of which are included in the letter templates. Equally, landlords may wish to use the SafeDeposits Scotland scheme, which has launched a resolution service which covers rent difficulty only. It is free and can be instigated by either the tenant or the landlord. The aim is to agree a payment plan to manage the arrears, no matter which avenue is used.
• if the tenant keeps to the agreement/ pays off the arrears, then there is no issue, and you may wish to withdraw your Notice for eviction – and the process depends on the tenancy type. Please let your tenant know you are doing this, as this will be a very stressful time for your tenant
• the letter 4: payment plan not met should only be sent if the earlier payment plan breaks down, ie. it is not adhered to. Again, it might be prudent to be flexible – eg. if a tenant is a few days late with payment, or if the tenant lets you know of a temporary emergency. The aim is to sustain the tenancy, for as long as possible. Letter 4 is another attempt to engage the tenant to come up with a payment proposal, as again, the aim is to sustain the tenancy. This might be appropriate, for example that there has been change circumstances.
• if the case should reach the First Tier Tribunal (Housing and Property Chamber) for a decision, your documented records will help with the Tribunal’s investigation. Eviction notices (those served on or after 7 April 2020) will be decided by the Tribunal on a discretionary basis. Compliance with the pre-action protocols will be considered by the Tribunal in reaching a decision. Overall, the Tribunal will be looking for ‘reasonableness’ in the behaviour of the landlord and the tenant, which will include attempts to engage positively with the tenant and providing opportunities to avoid eviction, as far as reasonably possible.
• under no circumstances, or at any point, should you harass your tenant or force them to leave, as this is illegal. It will also bring into question, your fitness to be a landlord, under the landlord registration criteria.