Repossession grounds - conduct

The eviction ban ended on 31 March 2024.

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

There are two points that need to be borne in mind about recovery of possession on any of these grounds (except where ground 2 is used and notice was served within 12 months of the conviction):

• It must be reasonable for the court to grant the order. In addition to establishing the ground, the landlord must also satisfy the sheriff that it is reasonable to grant the order for possession. The onus in the legislation is on the landlord to prove reasonableness, however simply stating the facts of the case is usually sufficient. In practice the burden then shifts to the tenant to persuade the sheriff that, although the ground has been established, it is not reasonable to grant the order. [1] In deciding whether to grant possession, the sheriff must take into account every factor that is relevant to the tenant and the case as a whole. [2]

• In making a decision on reasonableness, the court is explicitly required to consider the conduct of the tenant or someone living with them. [3] Although the court must have regard to all the circumstances of a particular case in establishing reasonableness, there are factors that it must explicitly consider in relation to actions taken on the basis of conduct.

In certain circumstances, (including actions raised using ground 2) tenants may be able to defend possession proceedings using the Equality Act 2010. For more information, see the page on Equality Act 2010.

If the landlord is taking action on any of the following grounds, the court must have regard to what the conduct was, how often it happened and how long it continued for. The grounds where these factors must be considered are: [4]

• ground 1: non-payment of rent or a breach of the tenancy agreement

• ground 2: (but only in cases where notice was served more than 12 months after conviction) the tenant or someone living with/visiting the tenant has been convicted of a criminal offence

• ground 3: deterioration of the property or common parts

• ground 4: deterioration of furniture provided with the property

• ground 5: tenants have left the property

• ground 6: the tenant made a false statement in order to obtain the tenancy

• ground 7: the tenant, or someone living with or visiting them, has acted in an antisocial manner.

If the landlord is taking action on ground 2 (but only in cases where notice was served more than 12 months after conviction), where the tenant or someone living with or visiting them has been convicted of particular offences, the court must look at what the conduct was, how often it happened and for how long it continued prior to the conviction. [5]

If the landlord is taking action on any of grounds 1 to 7 (except where ground 2 is used and notice was served within 12 months of the conviction), the court must also consider the following: [6]

• The extent to which the conduct was the responsibility of someone other than the tenant. This would include cases where rent was unpaid because of housing benefit delays and so apparent rent arrears accrue.

• The effect which the conduct has had, is having and is likely to have on someone other than the tenant. For example, the impact on neighbours of problems in a common stair or of anti-social behaviour.

• Any action the landlord has taken to bring an end to the conduct, before beginning court proceedings. For example in Glasgow City Council v Allan, sending a warning letter, offering access to a mediation service or applying for an anti-social behaviour order were taken into account by the court. [7]

In order for a landlord to take action on ground 1, [8] the rent must be lawfully due. If the tenant has withheld rent because the landlord has not carried out repairs, it is possible to argue that the rent was not lawfully due. The arrears must be continuing at the time of the court hearing for the landlord to use this ground. [9]

See also the sections Preventing eviction over rent arrears and Considering reasonableness. 

From 1 August 2012 social landlords must comply with certain pre-action requirements before they go to court for a possession action where one of the grounds involves rent arrears. [10]

In order for a landlord to take action on ground 2, [11] the tenant, or someone living with or visiting them, must have received a criminal conviction in order for this ground to be relied upon by the landlord. The conviction must be for using the property or allowing it to be used for immoral or illegal purposes, or for another offence that is punishable by a prison sentence, which was committed in or in the locality of the house. This would include, for example, drug dealing, violence or criminal damage.

This second point means actual use of the property is not always necessary to establish this ground and extends the range of offences that can be used as a basis for the landlord's action.

From 1 May 2019, if proceedings are being raised under ground 2, a landlord can avoid the requirement to show ‘reasonableness’. However, in order to exclude this requirement, the landlord must serve notice of proceedings on the tenant at least 12 months from the date the person was convicted of the offence to which the ground relates. [12]

In addition, even though there may be no requirement to show reasonableness the landlord must give 'due regard' to the statutory guidance. [13] It is likely to be assumed that the landlord will have taken the guidance into account. The onus is on the tenant to prove if the landlord has failed to give due regard to the guidance. The Guidance states 'there are a range of factors which landlords should consider in deciding whether raising eviction action using the streamlined eviction process is both appropriate and proportionate. Some examples of this could include:

• the nature and seriousness of the offence, including any recurring nature of convictions or cumulative effect of several incidents, or the potential seriousness of a one off offence;

• who has been convicted of the offence and their connection to the property;

• where the offence was committed and the connection to the social housing tenancy;

• whether, and to what extent the offence has affected other household members, neighbours or others in the community, including the impact on neighbours and communities over time and the impact on the stability of the community;

• what action, if any, the person convicted of the offence is taking to make positive change;

• impact of eviction on household members;

• other steps taken/which could be taken by the landlord or partner agencies to address the antisocial or criminal behaviour'.

The statutory guidance gives more detail on each of the factors above. If a landlord has not considered these matters, but raises action to evict using ground 2 a tenant may want to seek advice from a specialist housing solicitor.

If notice of proceedings was served more than 12 months after the date of conviction, then the court will still need to consider reasonableness. Advisers should therefore check this carefully.

If reasonableness is to be considered, the court will take into account: [14]

• public interest

• whether the defender knew the consequences of their actions in relation to their tenancy

• the gravity of the offence

• the consequences of eviction for the defender.

In order for a landlord to take action on ground 3, [15] a landlord using this ground as a basis for an action to recover possession has to establish that the tenant, or someone living with her/him, is responsible for the deterioration of the property through acts of waste or neglect. This applies also to any common parts such as stairwells or shared gardens. [16] If a lodger or subtenant caused the deterioration, the tenant must have failed to take reasonable steps to remove her/him from the property.

To use ground 4, [17] a landlord has to establish that the condition of any furniture supplied with the property has deteriorated because of ill treatment by the tenant, or someone living with her/him. This applies also to furniture that is to be used in any common parts such as shared gardens. If a lodger or sub-tenant caused the deterioration, the tenant must have failed to take reasonable steps to remove her/him from the property.

Under ground 5, [18] if the tenant, and her/his spouse, civil partner or cohabitee, has been absent from the property without reasonable cause for a continuous period of more than 6 months, the landlord can use this as a ground for recovery of possession. It is not sufficient that the tenant and her/his spouse, civil partner or cohabitee can be shown to have been absent, the landlord must demonstrate that the absence was not reasonable. For example, the tenant can argue that the absence was reasonable because s/he was looking after an ill relative in the relative's own home. This ground must be distinguished from the abandonment procedure.

The landlord can also rely on ground 5 if it can be established that the tenant, and their spouse, civil partner or cohabitee has ceased to occupy the property as her/his principal home.

In order to use ground 6, [19] the landlord must establish not only that the tenant made a false statement which led to a tenancy being granted, but also that the tenant made the statement knowingly or recklessly. However, in a case under the comparable legislation applying to secure tenancies under the Housing (Scotland) Act 1987, it was not enough that the defender admitted this ground. The pursuer had not met the requirements in relation to a notice of proceedings, a period of 28 days had been specified in the notice when this should have been 40 days. The sheriff therefore dismissed the action as incompetent. [20]

It has been held by the English courts that where a person other than the tenant makes false statements, that tenant will be responsible only when they instigated the remarks. [21]

Making a false statement will only be a ground for repossession where it led to the tenancy being awarded. In determining whether a false statement had induced an authority to grant a tenancy, the court should consider whether the statement materially affected the authority's decision. [22]

Under ground 7, [23] if a landlord can establish that the tenant, or someone living with or visiting them, has indulged in behaviour that is antisocial to anyone in the local area, or has harassed someone in the local area, this ground can be used as the basis to recover possession. The landlord must also demonstrate that it is not reasonable to re-house the tenant elsewhere.

The behaviour or harassment does not have to have occurred within the property itself for this ground to be used. The test of reasonableness may be important where it is not the tenant who is responsible for the alleged behaviour. In a recent court case, the behaviour of one of the tenant's children contributed to the local authority raising an action and obtaining decree. [24] In this case, the tenant's child had been diagnosed as suffering from an attention deficit disorder but the court decided that the child was still responsible for his behaviour. In an English case, the court held that where an eviction is being sought on the grounds of antisocial behaviour arising from a disability, the landlord must also satisfy the court that the eviction is justified within the terms of the Disability Discrimination Act 1995. [25] For more information, see the page on disability discrimination. Glasgow Housing Association v Hetherington also offers authority here where it was stated that "each case had to turn on its own facts and circumstances". After a period of good behaviour the court adjourned proceedings for six months, to monitor the tenant's behaviour, with conditions imposed. [26] See the section on 'Antisocial behaviour caselaw' below for more information.

If a member of the household is served with an antisocial behaviour order, the landlord has the option to convert the relevant tenancy from a Scottish secure tenancy to a short Scottish secure tenancy.

Anti-social has been defined as, an action or course of conduct causing or likely to cause alarm, distress, nuisance or annoyance. [27] Consequently, a wide range of behaviour can be covered by this ground, including noise, violence, failure to control pets, vandalism and the behaviour of a tenant's children. The model Scottish secure tenancy agreement contains a list, which is not exhaustive, of possible factors that may constitute anti-social behaviour. [28]

Conduct includes speech, and a course of conduct must involve conduct on at least two occasions. [29]

Harassment is defined in the Protection of Harassment Act 1997, and will include causing alarm or distress to someone. [30]

The following two cases were defended by Shelter Scotland's Housing Law Service. Case reports are available for download on the right hand side of this page.

In North Glasgow Housing Association v LeeAnn Souter [31] the pursuer was seeking possession in terms of grounds 2 and 7 of the 2001 Act. The defendant had been convicted of an offence under the Children and Young Persons (Scotland) Act 1937 and her partner had been convicted of a drugs offence. Shelter Scotland's Housing Law service successfully argued that the defendent and her partner had changed - they were enrolled in a drug rehabilitation programme - and decree of dismissal was granted.

Similarly in Shetland Island Council v Leask [32] the defendant had been convicted of drugs offences and the pursuers were looking for possession on the same grounds. Shelter Scotland's Housing Law Service successfully argued that the defendent had changed - he had stopped using drugs, was holding down employment and was likely to get a promotion - and the case was dismissed.