Eviction because of rent arrears

If you do not make sufficient payments towards clearing your rent arrears, your landlord will have the right to try to evict you. Your landlord cannot just throw you out of your home; the correct legal procedures must be followed.

Scottish secure and short Scottish secure tenants

If you rent your home from a social landlord they must have a reason (or 'ground') to evict you. Rent arrears are one of these grounds.

If your landlord wants to evict you because of rent arrears they have to follow a set of pre-action requirements before they can start any eviction action.

Your landlord must follow these steps before they can start a rent arrears eviction action:

  • give you clear information – about the terms of your tenancy agreement, the rent you pay, or any other cost you owe your landlord
  • offer you help and advice – your landlord has to make reasonable efforts to give you help and advice regarding housing benefit or other forms of financial help
  • help you with debt management – your landlord should give you information on where to get help with managing your debts
  • try to agree a payment plan – you landlords should try to agree a payment plan with you.
  • not to start an eviction action before considering:
    • any housing benefit applications – and whether this will help you to pay off your arrears
    • your actions - steps that you are taking which could result in you paying off your arrears in a reasonable time
    • any payment plan -  whether you are sticking to the terms of any agreed repayment plan
  • encourage you to contact the council– if your landlord is not the council then you should be made aware of what help is available from your council.

Only after your landlord has followed these pre-action requirements can they start an eviction action for rent arrears. If the case goes to court the sheriff will have to consider the factors listed below before deciding if it is reasonable to grant an eviction order.

Factors the sheriff will take into account include:

  • the amount of the arrears
  • the likelihood of your being able to repay the arrears and meet future rent repayments
  • the reasons for the arrears arising, for example, illness, sudden loss of employment or problems with housing benefit
  • what the landlord has done to try to collect the arrears
  • what the consequences of eviction will be for you and your family, for example, will you be homeless and how easy will it be for you to find new accommodation?
  • the length of time you have been a tenant and your record as a tenant before the arrears arose
  • if you have a joint tenancy, whether only one of the tenants is responsible for the arrears - in this case an 'innocent' tenant who has been paying their share of the rent may not be evicted.

Note: if your landlord started eviction proceedings before 1 August 2012 then the pre-action requirements do not need to be followed.

Assured tenants

If you have more than three months' rent arrears at the time of the notice and at the time of the court hearing, the court has to make an eviction order, unless your rent arrears have been caused by unpaid housing benefit.

If you have less than three months' rent arrears, it is up to the sheriff to decide whether you should be evicted or not. It's therefore in your best interest to try to reduce your arrears as much as possible.

    Short assured tenants

    If you are a short assured tenant, your landlord can also evict you at the end of your lease by serving you with the correct notices. Get these checked by an adviser, to make sure they are legally correct.

    Regulated tenants

    Some private tenants who have lived in their accommodation for a long time are regulated tenants. If a regulated tenant builds up rent arrears, the landlord can serve a notice and apply to the court for an eviction order. However, the court will only make an eviction order if it is reasonable to do so.

    What if I'm evicted?

    If the court makes an eviction order, you will have to leave when the order comes into effect, usually in two or three weeks' time. The court may also make an order allowing your landlord to get the rent money you owe. For example, this could be done by taking money out of your wages.

    Tenants who share with their landlord

    If you share with your landlord, you will be a common law tenant. Under the common law, your landlord should give you four weeks' notice before you have to leave. The notice doesn't have to be in writing or for any specific period of time unless it says so in your tenancy agreement. Your landlord should get a court order before they can make you leave the property, but this is likely to be granted immediately, especially if you have rent arrears. In addition, you may have to pay your landlord's court expenses. Check the eviction procedures for common law tenants that landlords must follow

    Other tenants

    If you have a different kind of tenancy agreement, for example if you live in a mobile home, tied accommodation, university-owned student accommodation or supported accommodation, go to the section on eviction to find out your rights.

    The important points

    • If you rent from a social landlord (you have a Scottish secure or short Scottish tenancy) and they want to evict you because of rent arrears they must follow a certain set of pre-action requirements before any eviction action.
    • Assured tenants who have more than three months of rent arrears at both the time of the notice and the court hearing will receive an eviction order.
    • Short assured tenants can be evicted at the end of your lease by the landlord serving the correct notices.
    • If you share your housing with your landlord, they should give you four weeks' notice and get a court order but the court order is likely to be granted immediately, especially if you have rent arrears.

    Speak to a Shelter Scotland adviser

    Call Shelter Scotland's free housing advice helpline

    0808 800 4444
    9am-5pm, Monday to Friday

    Email an adviser

    You can also email a housing adviser. We aim to respond within three working days.

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