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 discretionary or mandatory

This is a discretionary ground if notice was served on or after 7 April 2020.

This is a mandatory ground if: [1]

  • notice was served prior to 7 April 2020

  • 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 also a discretionary ground if notice was served prior to 7 April 2020 and 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.

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

This eviction ground is currently discretionary, so the tribunal must consider reasonableness in every case.

Where notice was served prior to 7 April 2020 and 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 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 grant fund closed on 31 March 2022 and 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.

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. 

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.

Coronavirus (Scotland) Act 2020

In all cases where notice was served between 7 April 2020 and 29 March 2022, a private residential tenancy is subject to a longer notice period for rent arrears (six months regardless of length of occupancy). [6]

All eviction grounds remain discretionary until at least 30 September 2022.

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

Private sector rent arrears pre-action requirements

Temporary legislation has introduced 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.

This requirement remains in place until at least 30 September 2022.

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

Last updated: 30 March 2022

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