Considering reasonableness in rent arrears cases

When recovery of possession is due to rent arrears and is sought from a Scottish secure tenant the reasonableness factor should always be considered.

Reasonableness must always be considered in private rented sector evictions. [1] [2] [3] [4]

Much of the case law pertaining to reasonableness under the pre-2001 secure tenancy regime can be cited in relation to repossession actions involving both private or social rented tenants.

The discretion vested in the court tor tribunal to determine whether it is reasonable to grant an order for possession has been described as an 'overriding equity'. [5] The court or tribunal is to exercise its discretion in a judicial manner and all the relevant circumstances must be taken into consideration as they exist at the date of the hearing.

In cases involving rent arrears, factors that may be relevant to the reasonableness argument include:

• the amount of the arrears

• the likelihood of the tenant being able to repay arrears and meet future rent repayments

• the length of time the person has been a tenant and their record as a tenant before the arrears arose

• the reasons for the arrears arising, for example, sudden loss of employment, problems with housing benefit

• duties of the local authority that may arise following an eviction under the homelessness [6] or social welfare legislation [7]

• the implications of eviction for any 'innocent' joint tenant [8]

• whether the landlord has sought arrears direct.

In all cases the tenant's personal circumstances and those of their family are potentially relevant. Even if the tenant's conduct is 'blameworthy' it may not be reasonable to evict because of the consequences for the tenant and/or her/his family. Where eviction proceedings are based on the actions of only one of the joint tenants it may not be reasonable to evict an 'innocent' joint tenant. [9] At the very least the landlord should show whether the court is 'dealing with a bad tenant who has persistently been in arrears or a tenant with a good record who had only recently fallen into arrears through misfortune'. [10]

Items such as heating charges or repair charges may be added on to tenants' rent accounts. Although they cannot be counted as 'rent arrears' it is likely that payment of these other charges will be included in the tenancy agreement so for Scottish secure tenants, ground 1 of the Housing (Scotland) Act 2001 may still be applicable, however advisers should check.

For private residential tenancies and assured tenancies any action to recover monies which are not rent would need to be raised separately under the appropriate ground. If the amount claimed under an action raised for rent arrears includes non rent items this should be pointed out to the tribunal.

Any recovery action must be based on rent that is lawfully due. In some cases there may be a defence to the amount claimed. If the landlord is in breach of her/his repairing obligations implied under section 27 and schedule 4 of the Housing (Scotland) Act 2001 for Scottish secure tenants, or the Housing (Scotland) Act 2006 for private residential and assured tenants, it could be argued that the landlord is in material breach of contract and the rent is not therefore lawfully due.

A counter claim for damages may be made if the landlord is claiming payment of the arrears as well as repossession, but not if only repossession is claimed. This may be the only defence where repossession is sought under ground 8 of the Housing (Scotland) Act 1988. Failure by the landlord in her/his statutory obligations could mean that the rent is not lawfully due.

It is important to consider however that the tribunal may expect to see evidence that the tenant has attempted to have the repairs carried out and, where there is a private landlord this may include taking action against the landlord at tribunal under the repairing standard.

In some parts of Scotland there is a large proportion of social housing stock suffering dampness and in a state of disrepair. Advisers should seek information from the applicant as to the state of their current housing. If the client is eligible for legal aid it may be possible for them to obtain financial help in having expert surveys carried out to support their case.

Regardless of tenure, if repairs are to be cited in any defence it is recommended that the client be referred to a solicitor experienced in these areas of law.

It is not the case that rent arrears are no longer 'lawfully due' if the tenant has been sequestrated. However the question of reasonableness will be clearly relevant in such cases. It has been suggested that 'the fact of sequestration makes no difference to (the question of whether the rent is lawfully due), although the bankrupt's discharge from the sequestration will have the effect that pre-sequestration arrears are no longer due and sequestration will be highly relevant to the 'reasonability' of eviction'. [11]