Housing (Scotland) Act 2001 and 2010: repossession guidance for social landlords

1. INTRODUCTION

1. Payment of rent is the responsibility of every tenant. Every tenancy agreement states what rent and other charges the tenant must pay and when. Nothing in this guidance affects the obligation on tenants to meet their tenancy responsibilities.

2. Tenants, however, can find themselves in a variety of circumstances which make it difficult to pay their rent. Many social landlords ("landlords") do all they can to give tenants advice and support, but we know that practice varies. We know too that landlords make different decisions about when to serve a notice on the tenant that they may seek to repossess the property. Evictions are traumatic for tenants and their families and costly for landlords. That is why eviction must always be a last resort.

3. The Housing (Scotland) Act 2010 ("the 2010 Act") introduced pre-action requirements that landlords must satisfy in all rent arrears cases before serving a notice on a tenant. This notice ("a notice") advises the tenant that the landlord is considering court action to recover possession of the property because of the tenant's rent arrears. Pre-action requirements are aimed at providing further protection for tenants facing eviction for rent arrears by:

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

4. This statutory guidance is aimed at landlords and gives guidance on the pre-action requirements under sections 14 and 14A of the Housing (Scotland) Act ("the 2001 Act") as amended by section 155 of the 2010 Act and changes to repossession orders under section 16 of the 2001 Act as amended by section 153 of the 2010 Act. For ease of reference, we have shown the legislation in a consolidated way in Annex A.

5. In brief, the pre-action requirements are to:

• Give clear information about the tenancy agreement and the unpaid rent or other financial obligations;
• Make reasonable efforts to give help and advice on eligibility for housing benefit and other types of financial assistance;
• Give information about sources of help and advice with the management of debt;
• Make reasonable efforts to agree with the tenant a reasonable plan for future payments;
• Consider the likely result of any application for housing benefit that has not yet been decided;
• Consider other steps the tenant is taking which are likely to result in payment within a reasonable time;
• Consider whether the tenant is complying with the terms of an agreed plan for future payments; and
• Encourage the tenant to contact their local authority (where the local authority is not the landlord).

6. There are 5 pieces of secondary legislation which landlords must follow in order to meet the pre-action requirements. These are:

• Scottish Secure Tenancies (Proceedings for Possession) (Pre-Action Requirements) Order 2012 ("the PAR Order") which sets out more detail about the pre-action requirements ¹ ( Annex B );
• Scottish Secure Tenancies (Proceedings for Possession) (Confirmation of Compliance with Pre-Action Requirements) Regulations 2012 ("the Confirmation Regulations") which sets out the way in which a landlord must confirm to the court, before raising proceedings for possession on grounds which include rent arrears, that the pre-action requirements have been complied with ² ;
• Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012 ("the Notice Regulations") which replace the existing Notice of Proceedings form with 2 new forms - for cases where grounds do and do not include rent arrears ³ (a copy of Schedule 2 for cases where the grounds for recovery of possession include rent arrears is provided at Annex C );
• Scottish Secure Tenancies (Repossession Orders) (Maximum Period) Order 2012 ("the Period Order") which sets the maximum period for which the order for repossession granted by the court has effect ⁴ .
• Housing (Scotland) Act 2010 (Commencement No.7 and Transitional Provision) Order 2012 which sets as 1 August 2012 the date pre-action requirements and changes to repossession orders come into force and provides transitional provision for pre-action requirements where a notice is served before that date. ⁵

7. The secondary legislation (with the exception of the new form at Schedule 1 in the "Notice Regulations" for cases where the grounds do not include rent arrears), the pre-action requirements and this guidance do not apply in cases where social landlords seek repossession only for reasons other than rent arrears. If there are multiple grounds for seeking repossession, and those grounds include rent arrears, then landlords must meet the pre-action requirements and take account of this guidance before serving a notice on the tenant.

8. Landlords must meet the pre-action requirements for all notices of proceedings involving rent arrears which are served on a tenant and any qualifying occupiers on or after 1 August 2012. The pre-action requirements do not apply in cases where landlords have served a notice on a tenant or qualifying occupiers before 1 August 2012 and which is in force on the date that court action is raised.