Short Scottish Secure Tenancies for antisocial behaviour and miscellaneous changes: statutory guidance for social landlords

13. Short SSTs – Recovery Of Possession

Requirements for Recovery of Possession

13.1 The 2014 Act makes a number of changes to the law around recovery of possession of a house let using a short SST. In particular, landlords will wish to note that different processes now apply depending on whether recovery of possession action is being taken at the end of the term of a short SST (section 36 of the 2001 Act) or during the term of the short SST (section 14 of the 2001 Act).

Recovery of Possession – Section 36 of the 2001 Act

13.2 Section 11(a) of the 2014 Act amends section 36(2) of the 2001 Act and sets out a new requirement on landlords before proceedings for recovery of possession can be raised under section 36 of the 2001 Act for a house let using a short SST on any of the antisocial behaviour grounds. This new requirement is added as a new paragraph (aa) and is as follows:

“(aa) in the case of a short Scottish secure tenancy created by virtue of section 35 or paragraph 1,2, or 2A of schedule 6, the landlord considers that any obligation of the tenancy has been broken.”

13.3 This means that in the case of a short SST given on any of the antisocial behaviour grounds, court proceedings for eviction cannot be raised under section 36 unless all of the following are satisfied^[46]:

• the landlord has served a notice of recovery of possession on the tenant which is in the form prescribed by Scottish Ministers in regulations (see paragraph 13.11 of this guidance);
• the landlord considers that any of the obligations of the short SST have been broken;
• the proceedings are raised on or after the date specified in the notice; and
• the notice is in force at the time when the proceedings are raised.

13.4 The obligations of the short SST are the requirements on the tenant set out in their tenancy agreement, such as the requirement not to act in an antisocial manner.

13.5 It is the tenant’s responsibility to ensure that they comply with the terms of their tenancy agreement. Where a landlord has given the tenant a further opportunity to sustain a successful tenancy under a short SST and the tenancy requirements continue to be breached, landlords may then consider raising court proceedings for eviction as the most appropriate course of action.

13.6 When using section 36 of the 2001 Act to raise court proceedings for eviction at the end of the 12 month term (18 months where an extension applies), landlords should be satisfied that taking this action is proportionate. This includes situations where any other obligation of the tenancy unrelated to the antisocial behaviour has been broken, such as payment of rent.

13.7 Before deciding to take action to end the tenancy because of antisocial behaviour, landlords will wish to consider their monitoring records, the support provided and the impact the antisocial behaviour has had, or continues to have, on household members, neighbours or others in the community.

13.8 The whole aim of giving a short SST for antisocial behaviour is to encourage the behaviour to stop and the tenancy to be sustained. It is therefore envisaged that this will result in many short SSTs being converted to an SST at the end of the 12 month term (or 18 months when an extension applies).

13.9 Section 11(b) of the 2014 Act amends section 36(3) of the 2001 Act and sets out a requirement for landlords to include new information in the notice of proceedings form as follows:

“(aa) state the reason why the landlord is seeking recovery of possession (including, in a case where subsection (2)(aa) applies, the obligations which the landlord considers to have been broken),”

13.10 The effect of this new requirement is that the notice must now^[47]:

• state that the landlord requires possession of the house;
• state the reason why the landlord is seeking recovery of possession (including in the case of a short SST created on any of the antisocial behaviour grounds, the tenancy obligations which the landlord considers to have been broken);
• specify a date not earlier than –
  (i) 2 months, or such longer period as the tenancy agreement may provide, 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 short SST,

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

13.11 The Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2018 set out the form of notice to be used for notifying the tenant of the landlord’s intention to raise proceedings for possession of the house under section 36(3) of the 2001 Act from 1 May 2019. The regulations contain 2 different forms of notice at schedule 1 and schedule 2. The form of notice at schedule 1 must be used where the the short SST was created on any of the antisocial behaviour grounds. The form of notice at schedule 2 must be used where the short SST was created on other grounds.

13.12 Where a landlord has served a notice on the tenant prior to 1 May 2019 and the notice is still in force on the date court action is raised, this guidance and these new provisions do not apply.

Right of Review – All Types of Short SST

13.13 Section 11(c) of the 2014 Act inserts a new subsection (4A) into section 36 of the 2001 Act which gives all tenants with a short SST under any of the grounds set out in schedule 6 to the 2001 Act a right to request that their landlord review the decision to seek recovery of possession before the case goes to court. The new right of review is as follows:

“(4A) a tenant may, before the end of the period of 14 days beginning with the day of service of a notice under subsection (2), apply to the landlord for a review of a decision to seek recovery of possession of the house which is the subject of the tenancy”.

13.14 This means that any tenant with a short SST has 14 days from the date of service of the notice of proceedings to apply for a review of the landlord’s decision to seek recovery of possession of the house. Landlords should set out clearly in their tenancy information:

• which methods of application for a review they will accept, for example, telephone, email or in writing;
• who the application should be made to;
• what information should be provided, for example the reasons why the tenant thinks the decision to take action to recover possession of the property is wrong, and any evidence for the landlord to consider;
• their timescale for carrying out the review;
• how the review will be carried out;
• who will carry out the review (this should be carried out by a member of staff who was not involved in making the original decision to take repossession action);
• how the landlord will advise the tenant of their decision; and
• whether or not they will consider a request for a review received out-with the 14 day timescale and if so, how it will be dealt with.

13.15 Section 11(c) of the 2014 Act also inserts a new subsection (4C) into section 36 of the 2001 Act which sets out certain requirements on landlords following receipt of an application for a review of a decision to seek recovery of possession of a house let under a short SST. These requirements are as follows:

“(4B) If an application for a review under subsection (4A) is made, the landlord must, before the day specified in the notice by virtue of subsection (3)(b) –

• confirm its decision to seek recovery of possession or withdraw its notice of proceedings^[48],
• notify the tenant of its decision on the review, and
• where its decision on the review is to confirm the decision to seek recovery of possession, notify the tenant of the reasons.”

13.16 This means that the landlord must notify the tenant of its decision on the review before the earliest date that eviction proceedings can be raised as set out by the landlord in the notice of proceedings form^[49]. Where the landlord’s decision is to take eviction action, the landlord must also notify the tenant of the reasons for this decision.

13.17 As the tenant’s home is at risk, wherever possible, landlords should aim to carry out the review and let the tenant know the outcome within 14 days of receiving the request.

Circumstances When The Court Must Make An Order for Recovery of Possession (Section 36 of the 2001 Act)

13.18 Section 11(d) of the 2014 Act amends section 36 of the 2001 Act to set out the circumstances when the court must make an order for recovery of possession of a house when the tenancy is a short SST given under any of the antisocial behaviour grounds. An order for recovery of possession must be made where it appears to the court that –

• a short SST on antisocial behaviour grounds has reached the end of the term applicable to the tenancy (i.e. the 12 month term, or in the case of an extension 18 month term);
• tacit relocation is not operating (i.e. the tenancy has not been automatically renewed for the same length of time);
• no further contractual tenancy (whether or not a short SST) is in existence; and
• a notice of proceedings has been served following the correct procedures.^[50]

13.19 Landlords will want to monitor the progress of a short SST given on antisocial behaviour grounds on a regular basis to ensure that the notice requirements for recovery of possession of the tenancy can be met should this become necessary. Landlords also have the option to use the procedures at paragraphs 13.21-13.29 below to recovery of possession of the property at any time during the term of the tenancy.

13.20 Due to the fact that tacit relocation cannot operate in the case of a short SST given on any of the antisocial behaviour grounds^[51] a Notice to Quit is not required for these cases.

Using the Procedures Available Under the Full SST (Section 14 of the 2001 Act) to Recover Possession of Any Short SST

13.21 The 2014 Act makes changes to section 14 of the 2001 Act to allow landlords to take action to recover possession of a house let under any type of short SST at any point during the term of the tenancy using the procedure for SSTs. This could be used where for example, antisocial behaviour escalates or rent arrears accumulate.

13.22 Section 11(f) of the 2014 Act amends the requirements around the serving of a notice to allow the procedure to be used for recovery of possession of any short SST. The notice of proceedings must however specify:

“a date, not earlier than 4 weeks from the date of service of the notice on or after which the landlord may raise proceedings for recovery of possession,”.

13.23 This change means that eviction proceedings can be raised using the procedures available under the full SST where one of the grounds for recovery of possession in schedule 2 of the 2001 Act exists. The landlord will have to comply with all of the requirements of section 14 when raising proceedings. This includes pre-action requirements in cases where the grounds for recovery of possession include rent arrears. The landlord will also have to give the tenant at least 4 weeks’ notice of their intention to raise proceedings for possession of the house. 

13.24 Where the landlord has already served a notice of proceedings on a tenant under section 14 of the 2001 Act before 1 May 2019, the amendment made by section 11(f) of the 2014 Act specifying the date which must be inserted in a notice in relation to the recovery of possession of a house let using a short SST does not apply.

13.25 When using the procedures at section 14 it will be up to the court to decide whether it is reasonable to grant an eviction order where the landlord has a ground for recovery of possession set out in any of paragraphs 1 to 7 of schedule 2 to the 2001 Act. However in cases where another court has already convicted a tenant of using the house for immoral or illegal purposes, or of an offence punishable by imprisonment, committed in, or in the locality of the house, the landlord may wish to consider whether it would be appropriate to use the new streamlined eviction process to recover possession^[52]. The streamlined eviction process removes the requirement that the court considers whether it is reasonable to make an eviction order, in cases where the landlord has a ground for recovery of possession set out in paragraph 2 to schedule 2 to the 2001 Act and a notice of proceedings has been served before the specified day. Further information about the streamlined eviction process is contained in the statutory guidance Streamlined Eviction Process - Criminal or Antisocial Behaviour. 

13.26 The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Amendment Regulations 2018 make changes to the form of notice to be used by the landlord when notifying a tenant and any qualifying occupier under a Scottish secure tenancy (or short Scottish secure tenancy where section 14 of the 2001 Act is being used) that the landlord may raise proceedings in court to repossess the house.

13.27 The 2018 Amendment Regulations make changes to the Guidance Notes to each of the forms of notice contained in schedule 1 and schedule 2 of The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012 to reflect the terms of the streamlined eviction process. 

13.28 Landlords should adapt the ‘Guidance Notes’ section of the notice to the specific circumstances of each case. This is so that the notice is as easy for the recipient to understand as possible. The landlord should only include the appropriate text for either a tenant or a qualifying occupier. In cases where the ground(s) specified by the landlord in the notice include ground 2, the landlord should include the text provided for ground 2, along with any appropriate text, depending on the circumstances of the case.

13.29 The table on pages 26 and 27 summarises the key requirements and differences between using either section 36 or section 14 of the 2001 Act to take repossession action where the tenancy agreement in place is a short SST on any of the antisocial behaviour grounds.

Summary of Key Requirements For Taking Repossession Action – Short SSTs on Antisocial Behaviour Grounds Created Under Section 35 or Paragraph 1,2 or 2A of Schedule 6 of the Housing (Scotland) Act 2001

Requirements	Section 14 of the 2001 Act	Section 36 of the 2001 Act	Notes
Timescale For Using Specific Provisions in the 2001 Act To Take Repossession Action	At any point during the 12 month term of the short SST (18 months in cases where an extension applies).	When the 12 month tenancy (18 months where an extension applies) is coming to an end and no further contractual tenancy with the landlord (whether or not a short SST) is in place.	A short SST on any of the antisocial behaviour grounds cannot tacitly relocate (silent renewal of the tenancy). It does not automatically renew for the same length of time.
Circumstances When Repossession Action May Be Appropriate	One of the grounds for recovery of possession in schedule 2 of the 2001 Act exists. The sheriff will consider whether the requirements of section 16(2) of the 2001 Act are satisfied in these cases. Where recovery of possession is sought on one of the grounds set out in paragraph 1 to 7 of schedule 2 the sheriff must decide whether it is reasonable to grant an eviction order, unless the streamlined eviction process at section 16(2)(aa) of the 2001 Act is being used.	The landlord considers that any obligations of the tenancy have been broken. When using section 36 the landlord needs to have decided that it is not appropriate to allow the tenancy to be converted to an SST at the end of the 12 month term, or that it is not appropriate for the short SST to be extended for a one-off period of 6 months.	Examples of obligations of the tenancy agreement include the requirement not to act in an antisocial manner and the requirement to pay rent.
Notice Period to be Provided To The Tenant Of Landlord’s Intention To Take Repossession Action	Tenant to be given minimum of 4 weeks’ notice.	Tenant to be given 2 months’ notice (or such longer period as the tenancy agreement may provide) which cannot be given earlier than when a notice to quit could have been given had it not been a short SST.
Specific Information Landlord Must Provide In The Notice of Proceedings Form	No change made to the existing position by the 2014 Act other than in relation to the date which must be specified.	Landlord must state the reasons why recovery of possession is being sought also the obligations (requirements) of the tenancy agreement which the landlord considers to have been broken.
Right of Review Against the Landlord’s Decision to Seek Recovery of Possession	No	Yes – tenant has 14 days from date of service of notice of proceedings to request a review of landlord’s decision.
Notice to Quit Required	No	No	Tacit relocation cannot operate in any short SST for antisocial behaviour case.
Raising Court Proceedings	Court proceedings can be raised on or after the date specified in the notice and the notice must still be in force at the time when proceedings are raised.	Court proceedings can be raised on or after the date specified in the notice and the notice must still be in force at the time when proceedings are raised.