Rent arrears - assured and short assured tenancies

This section looks at the grounds for possession for rent arrears in assured and short assured tenancies.

This content applies to Scotland

Grounds for recovery relating to rent arrears

There are three grounds for recovery of possession of assured and short assured tenancies which relate to rent arrears. [1]

Ground 8

If the landlord is relying on ground 8 to obtain possession of a property, rent lawfully due from the tenant must be in arrears for at least three months. The arrears must exist both at the time the notice of proceedings for possession is served on the tenant and when the case is heard in court.

If notice was served prior to 7 April 2020, Ground 8 is a mandatory ground, where if it is proven the tribunal must grant decree and cannot consider reasonableness. However, since 2 July 2004 [2] it is possible that this ground may not be satisfied where the arrears are the result of problems with housing benefit payments.

If notice was served on or after 7 April 2020, Ground 8 is a discretionary ground.

Tactics when recovery is sought on ground 8

If the arrears are of rent lawfully due and there is no other defence regarding the procedural requirements or housing benefit payment problems then the only option may be for the adviser to help the tenant get the arrears under three months.

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 [3] or the Social Work (Scotland) Act 1968 [4] to offer cash to enable the rent arrears to be reduced to less than three months.

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. [5] Since 2 July 2004, provided the delay or failure to pay housing benefit was not the fault of the tenant, the sheriff has the discretion not to make an order under ground 8 unless it would be reasonable to do so. [6]

Advisers should always seek expert advice in ground 8 cases and a referral to a solicitor with expertise in housing law would be appropriate in such cases.

Ground 11

Ground 11 is a discretionary ground. The tribunal may grant the landlord possession if the tenant has 'persistently delayed' in paying rent, even if there are no arrears at the time the landlord begins possession proceedings. For a landlord to succeed on this ground 'it would appear likely that some degree of deliberate delay, repeated on a number of occasions, is required'. [7] Since 2 July 2004, in considering whether or not it is reasonable to make an order under this ground, the sheriff must take account of any delay or failure in payment of rent caused by problems with housing benefit payments

Ground 12

Ground 12 is a discretionary ground. This ground applies to situations where some rent lawfully due from the tenant is unpaid on the date on which proceedings are begun, and was in arrears at the date of service of the notice of proceedings for recovery of possession.

The requirement to take account of delays or failures in payment of housing benefit outlined in ground 11 also applies in ground 12. [8]

For more information on the procedural requirements if a landlord is seeking possession of an assured tenancy, please see the section on assured tenancies.

Coronavirus (Scotland) Act 2020

In all cases where notice was served between 7 April 2020 and 29 March 2022, there are longer notice periods for rent arrears (six months). [9]

All eviction grounds including Ground 8 become discretionary. This remains in place until at least 30 September 2022.

See the page Landlord wants possession of an assured tenancy for full details.

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.

Private sector rent arrears pre-action requirements

The Coronavirus legislation introduced a requirement that, when considering reasonableness, the tribunal must consider to what extent the landlord has complied with certain pre-action requirements. [10]

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

You can see details of these on the page Private sector rent arrears - pre-action requirements.

Last updated: 30 March 2022

Footnotes

  • [1]

    sch.5 Housing (Scotland) Act 1988 as amended by s.12 Homelessness etc. (Scotland) Act 2003

  • [2]

    s.12 Homelessness etc. (Scotland) Act 2003

  • [3]

    s.22 Children (Scotland) Act 1995

  • [4]

    s.12 Social Work (Scotland) Act 1968

  • [5]

    reg. 91 Housing Benefit Regulations 2006

  • [6]

    s.18(3A) Housing (Scotland) Act 1988 as amended by s.12 Homelessness etc. (Scotland) Act 2003

  • [7]

    Mitchell J, 'Eviction and Rent Arrears', Shelter, para 5.20

  • [8]

    s.18(4A) Housing (Scotland) Act 1988 as amended by s.12 Homelessness etc. (Scotland) Act 2003

  • [9]

    sch.1 Coronavirus (Scotland) Act 2020

  • [10]

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