Private sector rent arrears - pre-action requirements

Temporary legislation introduced changes to the procedures where a private landlord is seeking to evict on the basis of rent arrears. One of the changes is that landlords should carry out certain pre-action requirements before they make an application for an eviction order. This pages provides details of the requirements.

This content applies to Scotland

Brief overview of the changes to private sector rent arrears evictions

Temporary measures have been brought in to protect tenants during the Coronavirus (COVID-19) pandemic. Prior to these measures, some rent arrears eviction grounds were mandatory. This meant the tribunal had to grant an eviction order if the relevant level of arrears was proved.

However, the new temporary measures mean that in private sector rent arrears cases, where noticed was served on or after 7th April 2020:

  • the landlord must have given a minimum of 6 months’ notice [1] AND

  • the tribunal must now consider whether it is ‘reasonable’ to evict. [2]

  • In rent arrears actions raised at the tribunal on or after 6th October 2020, in considering whether it is reasonable to evict, the tribunal must consider the extent to which the landlord has complied with the ‘pre-action requirements’ before applying for the eviction order. [3]

When do the pre-action requirements apply

These requirements only apply to rent arrears cases for private residential tenancies, assured tenancies and short assured tenancies, and where:

  • where either some or all of the arrears accrued after 7 April 2020 [4] AND

  • where the landlord applies to the tribunal on or after 6 October 2020 [5] (This is the date the application is received by the tribunal),

Effectively, this means the pre-action requirements apply to any rent arrears cases where notice was served on or after 7 April 2020. Because there is currently a six month notice period for all rent arrears actions a landlord will be unable to apply to evict due to rent arrears until at least 6 October 2020.

These new measures remain in force until 31 March 2022. [6]

What are the pre-action requirements

When considering whether it reasonable to grant an eviction order, the tribunal must consider the extent to which the landlord has complied with the pre-action requirements. [7]

The requirements are: [8]

  • The landlord must have provided the tenant with clear information relating to:

    - The terms of the tenancy agreement

    - The amount of rent for which the tenant is in arrears

    - Information about the tenant’s rights in relation to possession proceedings (including the pre-action requirements themselves)

    - Information as to how the tenant may access information and advice on financial support and debt management

  • In addition, the landlord must have made ‘reasonable efforts’ to agree a reasonable payment plan for the arrears and future rent payments.

  • The landlord must take reasonable consideration of:

    - Any steps taken by the tenant which may affect their ability to repay the arrears within a reasonable period of time

    - The extent to which the tenant has complied with any repayment agreement

    - Any changes in circumstances which are likely to impact on the tenant complying with a repayment agreement.

Practical steps advisers should take

Advisers should seek to establish as much information and evidence as possible on whether the landlord has complied with these requirements, for example:

  • get of any letters/emails between landlord and tenant

  • if notice has been served get a copy of this and confirm and note any key dates

  • gather full financial information from the client relating both to the period in which the arrears accrued and their current situation (if different)

  • if a repayment plan has been agreed is this affordable?

  • collate any evidence of steps the tenant has taken to tackle the arrears, for example did they engage with the landlord, have they contacted any money advice services etc?

  • make a note of any benefits applied for including relevant dates of claims made.

  • include any changes of circumstances, including changes to employment or health of household members

When gathering information it is important to check the following dates:

  • when the client first got into arrears

  • when the notice to leave was served

The Upper Tribunal has clarified that a notice to leave will be invalid if the ground does not apply when the notice is served on the tenant [9]. For example, where the landlord is raising eviction action on the basis of rent arrears advisers should be careful to check whether the arrears were at the required level on the date of service.

It may also be useful to note the timing and method of any contact from the landlord. For example, if the landlord does not contact the tenant until just before they raise tribunal proceedings it is arguable that they may not have made ‘reasonable efforts’ to agree to a repayment plan. If a landlord sends a letter but does not try and contact the tenant in any other way it may be arguable that they have not made 'reasonable efforts'.

Last updated: 11 November 2021

Footnotes

  • [1]

    paras.2 and 4 Sch.1 Coronavirus (Scotland) Act 2020

  • [2]

    For private residential tenancies - s.51(2) and Sch.3 Private Housing (Tenancies) (Scotland) Act 2016 as amended by para. 1. Sch.1 Coronavirus (Scotland) Act 2020: Assured tenancies s.18 and Sch. 5 Housing (Scotland) Act as amended by para. 3 Sch.1 Coronavirus (Scotland) Act 2020

  • [3]

    Para. 5 and 6 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 SSI 2020/304

  • [4]

    For private residential tenancies - para.12 (3A) Sch.3 Sch.3 Private Housing (Tenancies) (Scotland) Act 2016 as amended: Assured tenancies s.18(3B) Housing (Scotland Act 1988 as amended

  • [5]

    Para. 5 and 6 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 SSI 2020/304

  • [6]

    s.12 Coronavirus (Scotland) Act 2020

  • [7]

    Para. 5 and 6 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 SSI 2020/304

  • [8]

    For private residential tenancies - para.4 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 SSI 2020/304: Assured tenancies para.5 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 SSI 2020/304

  • [9]

    schedule 5 reg. 6 The Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017 SSI 2017/297; Majid and Gaffney & Britton [2019] UT 59 UTS/AP/19/0037