Landlord does not comply with the notice

This section looks at actions that can be taken against landlords who do not comply with antisocial behaviour notices.

This content applies to Scotland

Landlord obliged to take action

If a landlord is served with an antisocial behaviour notice s/he is legally obliged to take any action specified in that notice by the local authority. [1] If s/he fails to do so there are several sanctions that can be imposed.

Rental income order

If a landlord fails to comply with the conditions of an antisocial behaviour notice, the local authority can apply to the Sheriff Court for an order to suspend rental income. [2] Such an order means that no rent or other charges are payable under any lease or occupancy agreement applying to the property where the antisocial behaviour has taken place. [3] This effectively means that the tenant or occupier of that property does not have to pay rent until the order as to rental income is either revoked or suspended. The tenant would not be entitled to any Housing Benefit at this time as/he is not liable to pay rent. [4] Guidance states that the Housing Benefit department should be informed immediately if a rental income order is granted. [5] If the rental income order is revoked, other than by appeal, it is up to the tenant to reclaim Housing Benefit. [6]

Impact of rental income order on tenant

An order as to rental income will not affect the tenancy or occupancy agreement in any way. [7] However, tenants should be aware that it is possible for their landlord to appeal the service of a rent penalty notice. [8] If such an appeal is successful the tenant will have to pay any sums that would have been payable had the notice not been served. [9] Tenants should be advised to put rent money aside so they will be able to cope with this eventuality and avoid falling into arrears. Where a tenant's Housing Benefit is stopped because a rental income order is served, the decision to stop the Housing benefit claim will be revised. Housing Benefit will be paid to the landlord in respects of any payments that would have been made but for the service of the order. [10] The tenant does not have to submit a new claim. [11]

Challenging a rental income order

The landlord can appeal to the Sheriff principal against the decision to serve the order as to rental income. Such an appeal must be lodged within 21 days of the relevant decision being made by the court. [12]

At the same time as the appeal is lodged, or as soon as possible thereafter, [13] the landlord must provide the tenant with a statement that an appeal has been lodged against the decision to serve the notice or to refuse to revoke the notice. [14] The landlord must also provide a statement that if the appeal is successful the tenant will have to pay all the rent that would otherwise have been due since the rent penalty notice was served. [15]

This information should be provided to the tenant by post [16] or, if s/he has given her/his permission, by electronic communication. [17]

If the landlord fails to inform the tenants of the above information, the court will not require the tenant to pay the sums that would otherwise be due in the event of a successful appeal. [18]

Management control orders

If a landlord fails to take the action specified in an antisocial behaviour notice, the local authority can apply to the Sheriff Court for a management control order to be served. [19]

A management control order effectively transfers all of the landlord's rights and responsibilities under the tenancy or occupancy agreement to the local authority. [20] Such an order gives the local authority the opportunity to take action against the antisocial behaviour of tenants where the landlord has failed to do so. The order can last for up to 12 months. [21]

Effect of management control orders on tenants

The tenant's rights will not be altered in any way by the service of a management control order. [22] S/he will not have the same rights as tenants of local authority properties, ie her/his tenancy will not become a Scottish secure tenancy. However, if s/he has any problems with the property, for example something needs repaired or there is a problem with the rent, s/he should contact the local authority rather than her/his landlord. Rent payments should also be made directly to the local authority.

If the tenant is claiming Housing Benefit, s/he will continue to receive this. The tenant's rent liability will not be reduced as is currently the case for local authority tenants who are entitled to Housing Benefit. [23]

In the event that a tenancy or occupancy agreement ends during the period in which a management control order is in force the landlord can, with the permission of the local authority, grant a new tenancy or make a new occupancy agreement. [24] Any rights or responsibilities of the landlord under such an agreement will automatically be transferred to the local authority. [25]

As it has all the rights and responsibilities of the landlord when the order is in force, the local authority can take steps to end the tenancy. This can be done without the permission of the landlord.

Action by the local authority at the landlord's expense

If a landlord fails to take the action specified in the antisocial behaviour notice and it appears necessary to the local authority, then the local authority may take action to manage the tenant or occupant's antisocial behaviour at the landlord's expense. [26]

This means that the local authority can take the steps it considers necessary to deal with the antisocial behaviour described in the notice. [27] For example the local authority might inform the tenants of the consequences of their antisocial behaviour or take steps to end their tenancy.

Prosecution for failure to comply with a notice

If the local authority serves an antisocial behaviour notice on a landlord and the landlord fails to take the action specified in the notice within specified time, s/he will be guilty of an offence. [28]

It will be a defence for the landlord to show that there was a reasonable excuse for her/his failure to comply with the notice. [29]

Last updated: 28 July 2020

Footnotes

  • [1]

    s.79(1) Antisocial Behaviour etc (Scotland) Act 2004

  • [2]

    s.71(1) Antisocial Behaviour etc (Scotland) Act 2004

  • [3]

    s.71(1)(a) Antisocial Behaviour etc (Scotland) Act 2004

  • [4]

    For tenants under 60, reg.12 Housing Benefit Regulations 2006 SI 2006/213; for over 60s, reg. 12 Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 SI 2006/214

  • [5]

    para.54 part 7 Antisocial Behaviour Notices: Guidance for Local Authorities

  • [6]

    para.36 HB/CTB Circular A10/2006

  • [7]

    s.71(5) Antisocial Behaviour etc (Scotland) Act 2004

  • [8]

    s.72(1) Antisocial Behaviour etc (Scotland) Act 2004

  • [9]

    reg.2(b) Antisocial Behaviour Notice (Appeals against orders as to rent payable) (Scotland) Regulations 2005 SSI 2005/560

  • [10]

    reg.4(7E) Housing Benefit and Council Tax Benefit (Decisions and appeals) Regulations 2001 SI 2001/1002 as added by reg.4 Housing Benefit (Amendment) Regulations 2006 SI 2006/644

  • [11]

    para. 38 HB/CTB Circular A10/2006

  • [12]

    s.72(1) Antisocial Behaviour etc (Scotland) Act 2004

  • [13]

    reg.3(2) The Antisocial Behaviour Notice (Appeals against orders as to rent payable) (Scotland) Regulations 2005 SSI 2005/560

  • [14]

    reg.2(a) The Antisocial Behaviour Notice (Appeals against orders as to rent payable) (Scotland) Regulations 2005 SSI 2005/560

  • [15]

    reg.2(b) The Antisocial Behaviour Notice (Appeals against orders as to rent payable) (Scotland) Regulations 2005 SSI 2005/560

  • [16]

    reg.3(1)(a) The Antisocial Behaviour Notice (Appeals against orders as to rent payable) (Scotland) Regulations 2005 SSI 2005/560

  • [17]

    reg.3(1)(b) The Antisocial Behaviour Notice (Appeals against orders as to rent payable) (Scotland) Regulations 2005 SSI 2005/560

  • [18]

    s.72(5) Antisocial Behaviour etc (Scotland) Act 2004

  • [19]

    s.74(1)Antisocial Behaviour etc (Scotland) Act 2004

  • [20]

    s.74(3)(a) Antisocial Behaviour etc (Scotland) Act 2004

  • [21]

    s.74(3)(a) Antisocial Behaviour etc (Scotland) Act 2004

  • [22]

    para.2 sch.3 Antisocial Behaviour etc (Scotland) Act 2004

  • [23]

    reg.91A(2)(A) Housing Benefit Regulations 2006 SI 2006/213 as added by reg.2 Housing Benefit Amendment Regulations 2006 SI 2006/644; reg.72A(2)(a) Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 SI 2006/214 as added by reg.3 Housing Benefit Amendment Regulations 2006 SI 2006/644

  • [24]

    sch.3 para.6 Antisocial Behaviour etc (Scotland) Act 2004

  • [25]

    s.74(3)(b) Antisocial Behaviour etc (Scotland) Act 2004

  • [26]

    s.78(1), s.78(2) and s.78(3) Antisocial Behaviour etc (Scotland) Act 2004

  • [27]

    s.78(2) Antisocial Behaviour etc (Scotland) Act 2004

  • [28]

    s.79(1) Antisocial Behaviour etc (Scotland) Act 2004

  • [29]

    s.79(3) Antisocial Behaviour etc (Scotland) Act 2004