Preventing eviction in rent arrears cases

There are different procedural requirements and different grounds for recovery of possession depending on tenancy type. The tenant may be unsure of the type of tenancy s/he has or may have been wrongly informed by the landlord as to the nature of their agreement and her/his particular rights. For example, clauses in a tenancy agreement requiring a tenant to leave if s/he falls into rent arrears have no legal standing and a landlord would still be required to follow due legal process.

Advisers can use the Tenancy checker tool if they are uncertain as to which type of tenancy their client has.

The tenant themselves may not fully understand the process.

It is important to get hold of any paperwork, and with the tenant's permission it is advisable to contact the landlord or the landlord's solicitor, who may be willing to fax a copy of the paperwork as well as advising exactly what are the landlord's intentions.

Usually, solicitors have to follow the instructions given to them by the landlords, and advisers may have to liaise between the two.

Advisers should ensure they speak to the client at length if possible to find out all the circumstances that led to the arrears. Details should be noted about income and expenditure, household composition, health problems or disabilities.  

The client, perhaps with the adviser’s help, should check whether the landlord would be agreeable to a repayment agreement. If a repayment plan is agreed care should be taken to ensure that this is affordable.

The National Debtline Scotland has an online Budgeting Tool which can be used by clients to work out their Income and Expenditure. The tool allows them to save a copy and/or print out the information for later use.

Turn to Us has an online benefit calculator and clients can be advised to complete this and get back in touch if they do not qualify for assistance through the benefits system.

Citizens Advice Scotland and Money Advice Service can provide money advice and welfare benefit checks and other financial support information, including helping clients to apply for benefits.  

The Scottish Government introduced a tenant hardship grant fund and a loan fund during the coronavirus (COVID-19) pandemic. These were for tenants who had their finances impacted by the pandemic, who missed rent payments and did not have other means of support.

The loan fund closed on 31 December 2021.

The grant fund

Tenants applied for a grant through their local council’s homeless prevention team. The grant did not need to be paid back.

The grant fund has been extended to cover rent arrears that are not related to the pandemic. If you're assisting a client who is being evicted for rent arrears, check with the local authority. There may be money left in the fund, but it will be important to manage expectations with the client.

Protection against eviction:

Any landlord evicting a tenant over rent arrears needs to follow the pre-action requirements both in the social rented sector and in the private rent sector.

Landlords will also need to agree not to start or proceed with any repossession action to receive a grant payment. When preparing a defence at a tribunal, advisers should note where:

• a landlord has failed to signpost to the grant fund or

• refused to accept a grant fund payment

The loan fund

The loan was administered by the Scottish Government. Applications were made through the tenant hardship loan fund website.

The loan fund closed to new applications on 31 December 2021.

Any applications made prior to that date will still be processed. 

Any tenants who were given the loan should continue to make repayments as required by the loan fund. 

Tenants will not need to start paying off the loan for 6 months from the application being accepted.  Loan payments can then be split monthly for a maximum of 60 months. 

If you received a Tenant Hardship Loan and have an enquiry about it, please email TenantHardshipLoan@est.org.uk or call 0808 108 9414.

Protection against eviction:

For a tenant to receive the loan private landlords must have agreed not to repossess a property on certain eviction grounds. These grounds are:

• rent arrears

• the landlord or their family member intend to live in the let property

• the landlord intends to sell the let property

• the landlord intends to use the let property for a purpose other than housing

Any action to end a tenancy on these grounds that has already been started will also need to be withdrawn.

Any tenant who has received an eviction notice after receiving the loan fund should contact a housing adviser or solicitor for further advice.

Where an adviser has exhausted all avenues of negotiation and where cases are beyond the adviser's expertise, the client should always be referred to a solicitor experienced in housing law. In theory there are very few rent arrears cases that cannot be defended. However, there will be some cases where it is evident that the reasonableness defence is unlikely to succeed.

Where the case is passed to a solicitor the adviser may still a have a role in helping the client secure alternative accommodation, should decree be granted.