Evictions - duties to consider delay: equality impact assessment results

Background

A tenancy can be ended for a number of reasons. This can be due to a change in the status of the landlord or tenant (private rented sector), change of use of the property (private rented sector), or the conduct of the tenants. The most common reason for ending a tenancy in both the private and social rented sectors is however rent arrears^[4]. The landlord must follow the correct legal process and make an application to either the Tribunal (private rented sector) or the Court (social rented sector) to evict the tenant. A landlord can only remove a tenant from the property where an Order or Decree for eviction has been granted. Failure by the landlord to follow the correct legal process would result in an unlawful eviction.

Where an eviction has been granted, there are concerns about the potential negative impact of the timing of an enforcement particularly at certain times of year or in certain circumstances. For example, due to seasonal pressures, periods of religious significance, exam periods for families with school age children, those in College or University or where more time is required to access suitable alternative accommodation.

While the Tribunal and Court already have discretion to delay the enforcement of an eviction where they think it reasonable to do so, the legislative change being progressed would ensure that the Tribunal or Court always considers (except in limited circumstances), whether it would be reasonable in the circumstances of the case to delay the enforcement of the eviction for a period of time. The legislation sets out a number of factors that may be taken into account in deciding whether to order a delay to enforcement. These are where the timing of the eviction would:

• cause the tenant or a member of the tenant’s household to experience financial hardship
• have a detrimental effect on the health of the tenant or a member of the tenant’s household, or
• otherwise have another detrimental effect on the tenant or a member of the tenant’s household due to the tenant or the member of the tenant’s household having a disability.

In addition, in the private rented sector (“PRS”) the Tribunal will also be required to consider the impact of a delay to enforcement on private landlords. This will help to ensure that the rights of tenants are appropriately balanced against the rights of landlords to recover the let property. The factors set out in the legislation are where the timing of the eviction would:

• cause the landlord to experience financial hardship
• have a detrimental effect on the health of the landlord, or
• otherwise have another detrimental effect on the landlord due to the landlord having a disability.

There are certain grounds for eviction where it would rarely be appropriate for a delay to the enforcement of an eviction to be reasonable. Grounds due to antisocial conduct, criminal convictions, vacant/abandoned properties and domestic abuse (social rented sector) will therefore exempt from the new requirement.

Further information about the background, rationale and policy intention behind the Bill as a whole and the individual measures are set out in the Policy Memorandum^[5] which accompanies the Bill. The Bill, Policy Memorandum and other accompanying documents are available from the Scottish Parliament website and are linked to from this Bill webpage^[6].