Preventing eviction in rent arrears cases

This section looks at the key things to check when advising on eviction due to rent arrears. 

This content applies to Scotland

Identify tenancy type

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.

Identify stage of proceedings

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.

Detail the history of the case

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.  

Negotiate with landlord

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.

Income and expenditure

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.

How to check client benefit entitlement

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.  

Scotland’s Financial Health Service Advice offers a range of scenarios that might affect a person’s income, with helpful links to services by council area.

Tenant hardship grant and loan funds

The Scottish Government has introduced a tenant hardship grant fund and loan fund. These are for tenants who have had their finances impacted by the COVID-19 pandemic and do not have other means of support.

The grant fund

Tenants can apply for a grant through their local council’s homeless prevention team. The grant does not need to be paid back. The grant fund will be more suitable for tenants than the loan fund where the tenant is on a low income and would not be able to pay the loan back.

Criteria:

The grant fund is available for:

  • social tenants

  • private tenants

  • tenants of student accommodation.

People with no recourse to public funds will not be able to access the fund. The grant can cover arrears accrued between 23 March 2020 and 9 August 2021. Rent arrears built up after 9 August 2021 will only be covered by the grant fund in exceptional circumstances. The grant can cover all of a tenant’s arrears or a proportion of them. This is down to the discretion of the homeless prevention team. If an award is made for a proportion of the arrears then the council should work with the tenant and the landlord to establish a repayment plan for the rest of the arrears. The grant is paid directly to the landlord, so as not to affect any benefit entitlement of a tenant. Any private landlord receiving a grant fund payment must be registered with their local council.

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. It is expected that councils will want to see evidence the landlord has followed other pre-action requirements before awarding a grant payment. 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 is administered by the Scottish Government, and can be applied for through the tenant hardship loan fund website.

Criteria:

Loans are available for social and private tenants. People with no recourse to public funds will not be able to access the fund.

Fund details:

  • the loan can pay up to a maximum of 9 months’ rent costs covering rent arrears and future rent

  • it can cover arrears which have arisen since 1 January 2020

  • it can include up to a maximum of 3 months of future rent payments as part of the 9 month total

  • the loan is interest free

Loan repayments will be deferred for 6 months and repaid over 60 months. The loan fund will be subject to an affordability assessment to check whether the applicant has enough surplus income after costs to make the loan repayments. Applicants are advised to seek money advice to ensure that the loan is suitable for them. The application process for the loan highlights that there may be other more appropriate financial support options available to tenants. The loan fund will signpost people to sources of advice and support before accepting an application. More information can be found in Tenant's Hardship Loan - Information for advice providers.

Protection against eviction:

For a tenant to receive the loan private landlords will have to agree 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.

If proceedings have started

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.

Last updated: 27 September 2021