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

ANNEX A

SECTIONS 14-16 OF THE HOUSING (SCOTLAND) ACT 2001: AS AMENDED BY SECTIONS 153 AND 155 OF THE HOUSING (SCOTLAND) ACT 2010

14 Proceedings for possession

(1) The landlord under a Scottish secure tenancy may raise proceedings by way of summary cause for recovery of possession of the house.

(2) Such proceedings may not be raised unless-

(a) the landlord has served on the tenant and any qualifying occupier a notice complying with subsection (4),

(b) the proceedings are raised on or after the date specified in the notice, and

(c) the notice is in force at the time when the proceedings are raised.

(2A) Where such proceedings are to include the ground that rent lawfully due from the tenant has not been paid (as set out in paragraph 1 of schedule 2)-

(a) the notice under subsection (2) must not be served unless the landlord has complied with the pre-action requirements in section 14A, and

(b) the proceedings may not be raised unless the landlord has confirmed to the court in such form as the Scottish Ministers may prescribe by regulations that those requirements have been complied with.

(3) Before serving a notice under subsection (2) the landlord must make such inquiries as may be necessary to establish so far as is reasonably practicable whether there are any qualifying occupiers of the house and, if so, their identities.

(4) A notice under subsection (2) must be in such form as the Scottish Ministers may prescribe by regulations, and must specify-

(a) the ground, being a ground set out in Part 1 of schedule 2, on which proceedings for recovery of possession are to be raised;

(b) a date, not earlier than-

(i) 4 weeks from the date of service of the notice, or
(ii) the date on which the tenancy could have been brought to an end by a notice to quit had it not been a Scottish secure tenancy,

whichever is later, on or after which the landlord may raise proceedings for recovery of possession; and

(c) where subsection (2A) applies, the steps taken by the landlord which the landlord considers to constitute compliance with the pre-action requirements in section 14A.

(5) A notice under subsection (2) ceases to be in force 6 months after the date specified in it in accordance with subsection (4)(b) or when it is withdrawn by the landlord, whichever is earlier.

(5A) Where a landlord raises proceedings under this section, the landlord must give notice of the raising of the proceedings to the local authority in whose area the house in question is situated, unless the landlord is that local authority.

(5B) Notice under subsection (5A) is to be given in the form and manner prescribed under section 11(3) of the Homelessness etc. (Scotland) Act 2003 (asp 10).

(6) In this section and section 15, "qualifying occupier" means a person who occupies the house as that person's only or principal home and who is-

(a) a member of the tenant's family aged at least 16 years,

(b) a person to whom the tenant has, with the landlord's consent under section 32(1), assigned, sublet or otherwise given up possession of the house or any part of it, or

(c) a person whom the tenant has, with such consent, taken in as a lodger.

14A Pre-action requirements where grounds for possession include rent arrears

(1) The pre-action requirements referred to in section 14(2A) are set out in subsections (2) to (7) below.

(2) The landlord must provide the tenant with clear information about-

(a) the terms of the tenancy agreement, and

(b) outstanding rent and any other outstanding financial obligation of the tenancy.

(3) The landlord must make reasonable efforts to provide the tenant with advice and assistance on the tenant's eligibility to receive-

(a) housing benefit, and

(b) other types of financial assistance (for example, other benefits or grants).

(4) The landlord must provide the tenant with information about sources of advice and assistance in relation to management of debt.

(5) The landlord must make reasonable efforts to agree with the tenant a reasonable plan for future payments to the landlord, such plan to include proposals in respect of-

(a) future payments of rent, and

(b) outstanding rent and any other outstanding financial obligation of the tenancy.

(6) The landlord must not serve a notice under section 14(2) if-

(a) an application for housing benefit for the tenant-

(i) has been made but has not yet been determined, and
(ii) is, in the opinion of the landlord, likely to result in the benefit being paid at a level allowing the tenant to pay, or reduce by an amount acceptable to the landlord, the outstanding rent and any other outstanding financial obligation of the tenancy,

(b) the tenant is taking other steps which, in the opinion of the landlord, are likely to result in the payment to the landlord within a reasonable time of-

(i) the outstanding rent, and
(ii) any other outstanding financial obligation of the tenancy, or

(c) the tenant is complying with the terms of a plan agreed to in accordance with subsection (5).

(7) The landlord, unless it is a local authority landlord, must encourage the tenant to contact the local authority in whose area the house is situated.

(8) In complying with the pre-action requirements the landlord must have regard to any guidance issued by the Scottish Ministers.

(9) The Scottish Ministers may by order make further provision about the pre-action requirements, including provision-

(a) specifying particular steps to be taken, or not to be taken, by a landlord in complying with any requirement;

(b) modifying or removing any requirement.

(10) In this section, "housing benefit" has the same meaning as in section 123 of the Social Security Contributions and Benefits Act 1992 (c.4).

15 Rights of qualifying occupiers in possession proceedings

Where a qualifying occupier applies to the court to be sisted as a party to proceedings under section 14, the court must grant the application.

16 Powers of court in possession proceedings

(1) The court may, as it thinks fit, adjourn proceedings under section 14 on a ground set out in any of paragraphs 1 to 7 and 15 of schedule 2 for a period or periods, with or without imposing conditions as to payment of outstanding rent or otherwise.

(2) Subject to subsection (1), in proceedings under section 14 the court must make an order for recovery of possession if it appears to the court-

(a) that-

(i) the landlord has a ground for recovery of possession set out in any of paragraphs 1 to 7 of that schedule and specified in the notice required by section 14, and
(ii) it is reasonable to make the order,

(b) that-

(i) the landlord has a ground for recovery of possession set out in any of paragraphs 8 to 14 of that schedule and so specified, and
(ii) other suitable accommodation will be available for the tenant when the order takes effect, or

(c) that-

(i) the landlord has a ground for recovery of possession set out in paragraph 15 of that schedule and so specified,
(ii) it is reasonable to make the order, and
(iii) other suitable accommodation will be available for the tenant when the order takes effect.

(3) For the purposes of subsection (2)(a)(ii) the court is to have regard, in particular, to-

(a) the nature, frequency and duration of-

(i) where the ground for recovery of possession is one set out in any of paragraphs 1 and 3 to 7 of schedule 2, the conduct taken into account by the court in concluding that the ground is established,
(ii) where the ground for recovery of possession is that set out in paragraph 2 of that schedule, the conduct in respect of which the person in question was convicted,

(b) the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant,

(c) the effect which that conduct has had, is having and is likely to have on any person other than the tenant, and

(d) any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of that conduct.

(4) Part 2 of schedule 2 has effect to determine whether accommodation is suitable for the purposes of subsection (2)(b) or (c).

(5) An order under subsection (2) must appoint a date for recovery of possession and has the effect of-

(a) terminating the tenancy, and

(b) giving the landlord the right to recover possession of the house,

at that date.

(5A) Where an order is made under subsection (2) in proceedings under section 14 on the ground that rent lawfully due from the tenant has not been paid (as set out in paragraph 1 of schedule 2) or on grounds including that ground-

(a) subsection (5)(a) does not apply,

(b) the tenancy is terminated only if the landlord recovers possession of the house in pursuance of the order,

(c) the order must specify the period for which the landlord's right to recover possession of the house is to have effect (being no longer than any maximum period which the Scottish Ministers by order prescribe), and

(d) the landlord must have regard to any guidance issued by the Scottish Ministers about recovery of possession in pursuance of the order.

(5B) Before making an order under subsection (5A)(c) or issuing guidance under subsection (5A)(d), the Scottish Ministers must consult-

(a) such bodies representing local authorities,

(b) such registered social landlords or bodies representing them,

(c) such bodies representing tenants' interests, and

(d) such other persons,

as they think fit.

(6) Where, in proceedings under section 14 on the ground set out in paragraph 10 of schedule 2, it appears to the court that the landlord intends that-

(a) substantial work will be carried out on the building (or a part of the building) which comprises or includes the house, and

(b) the tenant should return to the house after the work is completed,

the court must make an order that the tenant is entitled to return to the house after the work is completed; and subsection (5)(a) does not apply in such a case.