Private sector rent arrears - pre-action protocols
Landlords must carry out pre-action protocols before seeking to evict using rent arrears grounds. 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 protocols. [sch.3 para.12 of the Private Housing (Tenancies) (Scotland) Act 2016, as amended by s.46 of the Coronavirus (Recovery and Reform) (Scotland) Act 2022] [s.18 of the Housing (Scotland) Act 1988, as amended by s.47 of the Coronavirus (Recovery and Reform) (Scotland) Act 2022]
What are the pre-action protocols
The requirements are: 
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 the protocols, 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 . 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: 30 September 2022