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

Summary

• tenants' rights

• templates for landlords

This guidance is useful in all cases of rent arrears, as it aims to support both the landlord and the tenant to manage the arrears and sustain the tenancy.

Where a notice to leave the property on rent arrears grounds has been served landlords should comply with the pre-action protocols.

This guidance supports landlords to comply with the pre-action protocols and includes useful tools, such as a series of template letters, downloadable from this page, to help ensure that tenants get the right information from landlords on the support available to help address their arrears, as well as their rights around eviction and the pre-action protocols.

The Coronavirus (Recovery and Reform) (Scotland) Bill sets out the requirements that landlords should comply with before seeking to evict a tenant.

Early intervention is a crucial element in helping to sustain tenancies and prevent homelessness, the Pre-Action Protocols (PAPs) are not intended as a check list of actions for landlords and instead should be viewed as a pro-active measure that can help to avoid the need for eviction. It will be most effective if carried out as soon as the tenant starts to fall into arrears. Landlords will know the tenant’s payment patterns best, and if this changes, it would be prudent to engage early.

These Regulations will apply where:

• the reason for seeking eviction is rent arrears
• the landlord serves notice on their tenant on or after 1 October 2022
• eviction action is being taken in respect of any assured, short assured or private residential tenancy

The pre-action protocols are for a landlord to:

Provide the tenant with clear information (which can be by writing or email) relating to:

• the terms of the tenancy agreement
• the amount of rent for which the tenant is in arrears
• the tenant’s rights in relation to proceedings for possession of a house (including the pre-action protocols set out in this regulation and the need for an order to be granted by a tribunal)
• how the tenant may access information and advice on financial support and debt management

Make reasonable efforts to agree a reasonable plan with the tenant to make payments to the landlord of:

• future payments of rent
• the rent for which the tenant is in arrears

Give reasonable consideration to:

• any steps being taken by the tenant which may affect the ability of the tenant to make payment to the landlord of the rent for which the tenant is in arrears within a reasonable time
• the extent to which the tenant has complied with the terms of any agreed plan
• any changes to the tenant’s circumstances which are likely to impact on the extent to which the tenant complies with the terms of an agreed plan

Further guidance on how these requirements can be met found in the pre-action protocols section.

The pre-action protocols sets out what landlords should do, as early as possible, before taking action to evict a tenant. Nothing in this guidance prevents a landlord from doing more to support tenants facing financial problems that impact on their ability to pay rent.

Where landlords’ practice already offers greater protection to tenants with rent arrears, that practice should continue. These requirements will help to formalise the good practice that already exists in the private rented sector and should help to sustain tenancies by:

• creating greater consistency in practice between landlords
• making sure that landlords and tenants explore other ways of resolving the arrears
• making sure that eviction for rent arrears is a last resort

For avoidance of doubt, where a landlord is seeking repossession on grounds that do not include rent arrears, the pre-action protocols and this guidance do not apply.

In cases where a landlord is seeking repossession on multiple grounds, which include rent arrears, then the pre-action protocols and this guidance will apply.

Information on how the pre-action protocols interact with the process of repossession of a property can be found in the Pre-action protocols and repossessions section of this document.

Tenants' rights

Scottish Government considers that the focus should always be on sustaining tenancies wherever possible and that eviction action should be a last resort given the negative impacts on tenants and landlords.

Landlords must at all times respect the rights of their tenants. This includes:

• if a tenant has received a notice to leave, they do not need to leave the property until an eviction order is granted by the First-tier Tribunal for Scotland (Housing and Property Chamber)
• if a landlord tries to physically or forcefully remove a tenant from their property without an eviction order, the landlord is committing a crime
• landlords must notify the relevant local authority when they raise proceedings for possession of a home. This was introduced by Section 11(1) of the Homelessness etc (Scotland) Act 2003 and came into force in 2009

Landlords should be flexible with tenants facing financial hardship and signpost them to the range of support that is available to help tenants pay their rent. Many landlords do all they can to give tenants advice and support and the pre-action protocols being introduced will reflect the approach they already adopt.

Landlords will have differing views about the right time to consider serving a notice on the tenant to seek repossession of the property in response to rent issues. In respect of rent arrears, there are occasions when tenants fall into arrears for short periods of time, sometimes for reasons beyond their control such as banking delays or Universal Credit payment cycles. It is essential that landlords consider all factors and communicate with their tenant before taking action.

Actions to evict tenants without following all of the requirements contained in the relevant legislation are illegal. Attempts to evict a tenant illegally could result in the landlord being convicted of an offence. On indictment, the court can impose an unlimited fine or imprisonment for a term not exceeding two years or both and a conviction will impact on a landlord’s registration. Involvement by an agent in an illegal eviction will also impact on a letting agent’s registration.

Definition of an illegal eviction includes:

• an illegal eviction is when a landlord, or their agent, fails to follow the proper process for ending a tenancy. The following actions may be illegal and can result in a landlord committing a criminal offence
• changing the locks to keep the tenant out of the property
• making life so uncomfortable for a tenant that they are forced to leave their home by for example cutting off water, gas or electricity supplies
• physically removing a tenant from the property, only a sheriff officer may do this

Templates for landlords

We have developed a series of templates to assist landlords. These are downloadable under supporting files. There is no obligation to use these, and landlords are free to amend or draft their own letters or follow their own processes, but landlords should remember that the Tribunal will consider the extent to which the The Coronavirus (Recovery and Reform) (Scotland) Bill are followed.

The focus is to let tenants know where they can get financial help and other support; as well as to work towards a payment plan to address the arrears. It also refers to SafeDeposits Scotland’s resolution service, as the tenant may be more comfortable working with an independent intermediary, as well as services offered by Shelter Scotland and Citizens Advice Scotland.