Eviction for rent arrears and private residential tenants

Landlords of private residential tenancies can raise action to evict due to rent arrears under ground 12.

This content applies to Scotland

Ground 12 can be mandatory or discretionary

This is a mandatory ground if: [1]

  • there have been arrears for at least three consecutive months and

  • at least one month’s rent in total is owed on the day of the tribunal hearing.

It is only a discretionary ground if less than one month’s rent in total is owed. [2]

An option therefore may be to ensure that any arrears are reduced to below the amount of one months’ rent before the date of the hearing.

Where notice was served on or after 7 April 2020 see the section below on Coronavirus measures.

Defence where arrears are due to delay or failure in benefit payments

It is common for rent payments to be late due to delays in housing benefit or universal credit payments. It is not mandatory for the tribunal to make an eviction order if the rent arrears are due to any delay or failure in payment of rent caused by problems with relevant benefit payments.

However, as housing benefit and universal credit are always paid in arrears it is conceivable that a tenant in receipt of benefits may find themselves in a position where they are always in arrears of one month even where there is no delay in payments. Tenants in this position should be encouraged to do what they can to get the balance down to below this one month rental figure.

If the arrears are due to problems with payment of housing benefit, advisers should remind the local authority of its legal obligation to make a payment of housing benefit within 14 days, or as soon as possible if this is not reasonably practical. [3]

Consideration of reasonableness

Where the arrears are less than one month the tribunal may still grant an eviction order but they must consider whether it is reasonable to do so. This is likely to turn on the facts of each individual case.

Help from social work

Local authorities have a duty to prevent homelessness. It may be appropriate to suggest that it exercise its powers under The Children (Scotland) Act 1995 [4] or the Social Work (Scotland) Act 1968 [5] to offer cash to enable the rent arrears to be reduced to less than one month.

Advisers should always seek expert advice and a referral to a solicitor with expertise in housing law would be appropriate in such cases.

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.

Coronavirus (Scotland) Act 2020

In all cases where notice was served on or after 7 April 2020 the PRT is subject to a longer notice period for rent arrears (six months regardless of length of occupancy) and all grounds, including Ground 12 become discretionary. [6]

See the page Grounds for possession of a private residential tenancy for full details.

Private sector rent arrears pre-action requirements

Temporary legislation also introduces a requirement that, when considering reasonableness, the tribunal must consider to what extent the landlord has complied with certain pre-action requirements. [7] This applies to all cases where the landlord applies for an eviction order on or after 6 October 2020.

You can full details on the page Private sector rent arrears - pre-action requirements.

Last updated: 27 September 2021

Footnotes

  • [1]

    sch.3 para.12(2) Private Housing (Tenancies) (Scotland) Act 2016

  • [2]

    sch.3 para.12(3) Private Housing (Tenancies) (Scotland) Act 2016

  • [3]

    reg. 91 Housing Benefit Regulations 2006

  • [4]

    s.22 Children (Scotland) Act 1995

  • [5]

    s.12 Social Work (Scotland) Act 1968

  • [6]

    sch.1 Coronavirus (Scotland) Act 2020

  • [7]

    Para. 5 and 6 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 SSI