Rent arrears - assured and short assured tenancies

The eviction ban ended on 31 March 2024.

We have more guidance on the eviction ban and the rent cap.

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

All the grounds are discretionary. [2] This means the tribunal must always consider reasonableness when deciding whether to issue an eviction order.

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.

The tribunal must consider whether it is reasonable to grant a decree. If the rent arrears were a result of problems with housing benefit or the housing element of universal credit payments, the tribunal will consider this when deciding on reasonableness.

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]

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.

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'. [6] 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.

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. [7]

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

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 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.

The grant fund has been extended to cover rent arrears that are not related to the pandemic. If you're assisting a client who is being evicted for rent arrears, check with the local authority. There may be money left in the fund, but it will be important to manage expectations with the client.

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.

When considering reasonableness, the tribunal must consider to what extent the landlord has complied with certain pre-action protocols. [8]

This requirement was made permanent on 1 October 2022.

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