Coronavirus (COVID-19) Eviction and security of tenure

The page provides details about the changes to eviction procedure in Scotland introduced in response to the Coronavirus (COVID-19) outbreak  

Summary of changes:

On 7th April 2020 the Scottish Government commenced the Coronavirus (Scotland) Act 2020. This is to be read in conjunction with the various Acts which relate to security of tenure for both public sector and private sector tenants in Scotland. The new Act has the effect of temporarily replacing certain parts of existing legislation. It remains in force until 31 March 2022.

Broadly the changes can be summarised as follows:

  • All eviction grounds for PRT, assured and short assured tenancies become discretionary. The tribunal may still grant an eviction order but only where it is reasonable to do so.

  • This includes a requirement for reasonableness to be considered where short assured tenancies are being recovered under a s.33 notice.

  • There will be an increase in the length of notice required for most eviction actions in both the private and public sector (ranging from 28 days to 6 months depending on tenure and grounds).

  • All actions for eviction in both the public and private sector due to rent arrears will require 6 months’ notice.

  • Short assured tenancies being ended using the section 33 procedure will also require 6 months’ notice.

On 30 September 2020 pre-action requirements for private sector rent arrears eviction actions were introduced. 

On 11 December 2020 the Scottish Government brought in emergency regulations to temporarily prevent enforcement of evictions during the Coronavirus COVID-19 outbreak.

  • the ban covered both social rented and private rented sector tenancies as well as mortgage repossessions

  • the ban applied in Level 3 and 4 areas

  • it was a ban on enforcement action - sheriff officers could not attend a property to serve a Charge for Removal or carry out an eviction or a mortgage repossession during period where the ban applies unless the eviction was granted due to criminal or antisocial behaviour.

Scotland moved out of the levels system on 9 August 2021, so the ban is no longer in force anywhere in the country.

This content applies to Scotland

When do the changes to notice periods apply?

The Act came into force on 7th April 2020. They expire on 31 March 2022. The Scottish ministers also have the power to modify parts of the Act.

Notice periods

The changes in the Act apply, in respect of all cases where notices were served during the time the Act is in force.

  • Where the landlord has served a notice before 7th April 2020 the 'old rules' notice periods apply.

  • Where the landlord serves notice on or after 7 April 2020 new notice periods apply.

  • Where the landlord serves notice on or after 3 October 2020 there are some amendments to the notice periods where the eviction ground is due to criminal or antisocial behaviour. However, there remains a six month notice period for all rent arrears actions and for actions to end a short assured tenancy under the s.33 procedure.

Mandatory and discretionary grounds

The removal of mandatory grounds also only applies to all cases where the notice was served on or after 7th April 2020.

These temporary changes remain in force until 31 March 2022.

Advisers should note, this means there may be cases where notice was served using a mandatory ground prior to the 7th April 2020 which have still not been heard at Tribunal. In such a case the notice period is worked out using the 'old rules' because the notice was served prior to the commencement date. If the case is then heard by the Tribunal prior to 31 March 2022 (or a later date if the Scottish Government renew the measures) then if a mandatory ground had been used in this case, the ground will still be mandatory at the time of the hearing (because notice was served before the Act came into force).

Private residential tenancies

All grounds become discretionary. The tribunal may still grant an eviction order but only where it is reasonable to do so [1].

The notice periods change as detailed in the Act [2]:

For details of potential defences to any of the grounds see the page in the section on private residential tenancies:Grounds for possession.

Short assured tenancies

For all actions to recover a short assured tenancy under the s.33 process, six months’ notice is required [3] .

Eviction using this process becomes discretionary, which means the tribunal may still grant an eviction order but only where it is reasonable to do so [4].

For information on what the other requirements are to recover under s.33 see the page Special possession ground in the section on Short assured tenancies.

Where the eviction of a short assured tenant is being raised on any other basis refer to the section below about assured tenancies.

Assured tenancies

All grounds become discretionary. The tribunal may still grant an eviction order but only where it is reasonable to do so [5].

The notice periods change as detailed in the Act [6]:

Tenancies under Rent (Scotland) Act 1984

Notice periods change for a number of tenancies which fall under the 1984 Act. These are an older style of tenancy created prior to 2 January 1989 and whilst some continue to exist there are relatively few left. The calculation of the notice period depends on several factors in relation to the tenancy.

Advisers should look at the relevant parts of the Act [7] alongside the pages about Regulated tenancies for more information.

This can be a complex area of law and if there is any uncertainty please consult with a specialist housing solicitor.

Scottish Secure Tenancies

There are no changes to reasonableness, which is already included as a requirement for almost all social sector eviction actions.

However, advisers should be alert to the fact that the requirement for reasonableness was removed in 2019 for some actions raised under ground 2: where a person has been convicted of a relevant criminal offence. The Act does not appear to have changed this, therefore some actions under this ground will still be mandatory (unless there is a prospect of an Article 8 defence).

The notice periods change as detailed in the Act [8] ]:

For details of potential defences to any of the grounds see the relevant page:

Short Scottish Secure Tenancies (SSST)

There are no changes to the mandatory eviction ground where the tenancy is being ended by giving correct notice at the end of the lease. However advisers should keep in mind that where a decision has been made to end a SSST there is is right to review this decision. See the section on Ending a SSST for more information.

In some cases, the notice periods have been increased. The length of notice period depends on what basis the SSST was offered.

The notice periods change as detailed below [9]:

Two months’ notice

Two months notice is required if the SSST was created on the basis that:

  • The prospective tenant has been evicted from a previous tenancy in the last three years on the grounds of anti-social behaviour.

  • The prospective tenant, or anyone who will be living with them, is subject to an anti-social behaviour order.

  • The prospective tenant or anyone living with or who has visited the prospective tenant has acted in an antisocial manner in the three years prior to the offer of the tenancy.

Six months’ notice

  • For all SSSTs which were created on the basis of any reasons not listed above.

Keep in mind that although not common practice, a SSST can also be ended using the same procedure as Scottish secure tenancies, in which case refer to that information. See the page Ending a Scottish secure tenancy for more information.

Temporary homeless accommodation and other tenancies/occupancies

There are no changes to eviction procedures for people in temporary homeless accommodation, unless they are in accommodation which is provided under one of the tenures above. For example, some local authorities may provide Short Scottish Secure Tenancies.

There are no changes to the eviction procedures for common law tenancies or non-tenant occupiers.

Advisers should continue to look at these on a case by case basis, paying careful attention to any paperwork issued and where required, consult with a specialist housing solicitor.

Errors in notices

Where any notice issued contains an error in terms of a failure to comply with the Coronavirus (Scotland) Act 2020, this in itself will not make the notice invalid. However, the court or tribunal will be required in effect to substitute any error in the date on the notice by applying the correct notice period. [10] This applies to:

  • PRT: Notice to Leave

  • Assured Tenancy: Form AT6 (sometimes call a Section 19 Notice)

  • Short assured tenancy: Section 33 notice

  • Scottish Secure Tenancy: Notice of Proceedings

  • SSST: Section 36 notice or Notice of Proceedings

  • Regulated Tenany: Notice served under s.112 of the Rent (Scotland) Act 1984

So, for example, a landlord issues a PRT tenant with a Notice to Leave on the basis of Ground 12: rent arrears, but the date written in the Notice to Leave gives only 28 days’ notice. Whilst the Act is in force the error with the date will not invalidate the Notice to Leave.

However, the tribunal are still required to apply the ‘correct’ notice period. In this example, for ground 12 the correct notice period under the Act is six months. If the landlord raises proceedings before six months has expired the application will be incompetent. It should also be noted that if this happens though, once the correct period of notice has expired, the landlord could raise new proceedings without being required to issue a new notice.

Advisers should keep in mind however that other errors in notices, such as failure to specify the eviction ground, may still render a notice to be invalid.

Potentially the Act may allow for all notices to be served electronically, regardless of whether this has previously been agreed between landlord and tenant [11].

Changes to prescribed notices

The following prescribed notices have been amended by the Act so that, during the period the Act is in force they are to be read as if the applicable amended notice periods apply [12]:

  • PRT: Notice to Leave and Sub tenancy Notice to Leave

  • Assured Tenancy: Form AT6 (Sometimes known as a section 19 notice)

  • SSST: Section 36 Notice

Advisers should note that there are no changes within the Act in relation to notice under section 33 (used in the short assured tenancy ‘special possession’ ground) as there is no prescribed form for this. In addition please see the section on Errors in Notices above.

Practical action by advisers

It is especially important that advisers make use of any longer period of notice to work with their client and try and resolve the issue prior to any eviction action being raised at court or tribunal. This time can also be used to negotiate with a landlord to see if an alternative to eviction might be possible.

So, for example, if the eviction is due to rent arrears the client may need help to claim benefits or to apply for charitable assistance to cover a shortfall. A referral can be made for money advice so that an affordable repayment proposal can be set up.

If a client requires additional support with their tenancy, for example due to a disability or other need, advisers may be able to refer the client to appropriate support service.

If all preventative work has been completed it may be useful to seek agreement with the client for further contact to be made at the point when action might be raised in order to check whether further assistance or court/tribunal representation is needed.

Defences: ‘reasonable to grant eviction'

The following factors may be relevant when considering whether or not an eviction order should be issued:

  • In rent arrears cases: the reason for the arrears should be carefully noted. Factors such as redundancy, reduced hours or delays in obtaining Universal credit or other benefits should be highlighted (and evidenced)

  • Health. Whether deterioration in mental or physical health has resulted in the breach of the tenancy agreement (rent arrears; anti-social behaviour; deterioration in the condition of the property; failing to occupy as principal home) or whether the tenant’s mental or physical health may be adversely affected if they were evicted from the property.

  • The steps the tenant has taken to try and resolve the situation (where applicable) – has the tenant been able to speak with their housing officer or letting agent? Have they been able to obtain money, debt and welfare advice? Has self-isolation or closure of premises affected the steps that could have been taken?

  • Alternative accommodation available if eviction order is granted. Where would the tenant go? Is temporary homeless accommodation feasible?

  • Remember that short assured tenants are now entitled to have these things considered.

Private rented sector: pre-action requirements

The Scottish Government introduced legislation requiring private landlords who are seeking to evict due to rent arrears to comply with certain 'pre-action requirements' - these are similar to the requirements currently placed on social landlords. For example landlords will have been expected to engage with tenants and consider any reasonable repayment offers.

See more on the page Private sector rent arrears- Pre-action requirements.

Enforcement ‘eviction ban’

The Scottish Government brought in emergency regulations to temporarily prevent the enforcement of evictions during the Coronavirus COVID-19 outbreak.

  • the ban covered both social rented and private rented sector tenancies as well as mortgage repossessions

  • the ban applied in Level 3 and 4 areas

  • it was a ban on enforcement action - sheriff officers could not attend a property to serve a Charge for Removal or carry out an eviction or a mortgage repossession during period where the ban applies unless the eviction was granted due to criminal or antisocial behaviour

Scotland moved out of the levels system on 9 August 2021, so the ban is no longer in force anywhere in the country.

Other issues

Further information may follow as more issues become known. Please check back on this page regularly.

Last updated: 6 August 2021

Footnotes

  • [1]

    para.1 Sch.1 Coronavirus (Scotland) Act 2020

  • [2]

    para.2 Sch.1 Coronavirus (Scotland) Act 2020

  • [3]

    para.4(3) Sch.1 Coronavirus (Scotland) Act 2020

  • [4]

    para.3(4) Sch.1 Coronavirus (Scotland) Act 2020

  • [5]

    para.3(2) and 3(5) Sch.1 Coronavirus (Scotland) Act 2020

  • [6]

    para.4(2) Sch.1 Coronavirus (Scotland) Act 2020

  • [7]

    para.5 and 6 Sch.1 Coronavirus (Scotland) Act 2020

  • [8]

    para.7(2) Sch.1 Coronavirus (Scotland) Act 2020

  • [9]

    para.7(3) Sch.1 Coronavirus (Scotland) Act 2020

  • [10]

    para.10 Sch 1 Coronavirus (Scotland) Act 2020

  • [11]

    para.1(2) and 1(3) Sch.4 Coronavirus (Scotland) Act 2020

  • [12]

    para.9 Sch.1 Coronavirus (Scotland) Act 2020