Publication - Advice and guidance

Summary

The Scottish Government have made clear that no-one should lose their home because they have suffered financial hardship due to coronavirus. We expect landlords to be flexible with tenants facing financial difficulties and to signpost them to the sources of financial support available, which are outlined in the private rented sector (PRS) tenant resource.

We have also made it clear that tenants must continue to pay their rent where they are able to do so. The changes brought in through the emergency legislation responding to coronavirus and the approaches outlined in this guidance do not affect tenants’ obligations, including paying rent.

This guidance is useful in all cases of rent arrears, as it aims to support both the landlord and the tenant to manage the arrears and sustain the tenancy.

Where a notice to leave the property on rent arrears grounds has been served on or after 7 April 2020 and the arrears occurred wholly or partially on or after 27 May 2020, landlords should comply with the pre-action requirements.

This guidance supports landlords to comply with the pre-action requirements and includes useful tools, such as a series of template letters, downloadable from this page, to help ensure that tenants get the right information from landlords on the support available to help address their arrears, as well as their rights around eviction and the pre-action requirements.

The Scottish Government has passed emergency legislation to protect tenants in Scotland during the coronavirus outbreak. The Coronavirus (Scotland) Act 2020 (“the Act”) protects tenants in Scotland from eviction action for up to 6 months. This applies to both the private and social rented housing sectors and ensures the position is clear for all landlords and tenants in Scotland.

The Act temporarily extends the amount of notice landlords must give when ending a tenancy. In most cases, landlords need to give tenants 6 months' notice, unless they are ending the tenancy for specified reasons. These include antisocial and criminal behaviour by the tenant or where the landlord or their family need to move into the property where shorter notice periods apply.

It also temporarily makes all grounds for eviction in the private rented sector discretionary, ensuring that the Tribunal will be able to use discretion and take all factors relating to the impact coronavirus has had on both the landlord and tenant into account before deciding whether to issue an eviction order or not.

The changes brought in by the Act apply in cases where a landlord serves notice on or after 07 April 2020. Where a landlord has served notice before 07 April 2020, these temporary changes do not apply.

A further change was made through the Coronavirus (Scotland) (No. 2) Act 2020 which allows for the introduction of pre-action requirements for landlords before they seek to end a relevant tenancy on the grounds of rent arrears, where rent arrears wholly or partially occurred on or after the 27 May 2020, which is the date the Act came into force. The extent to which a landlord has complied with these requirements will be considered by the Tribunal as part of their discretion in deciding whether to grant an eviction order.

Information on both Acts is outlined at Information about the Coronavirus Acts.

The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 sets out the requirements that landlords should comply with before seeking to evict a tenant.

Early intervention is a crucial element in helping to sustain tenancies and prevent homelessness, the Pre-Action Requirements (PARs) are not intended as a check list of actions for landlords and instead should be viewed as a pro-active measure that can help to avoid the need for eviction. It will be most effective if carried out as soon as the tenant starts to fall into arrears. Landlords will know the tenant’s payment patterns best, and if this changes, it would be prudent to engage early.

These Regulations are temporary and will apply where:

  • the reason for seeking eviction is rent arrears, where the rent in respect of which the tenant is in arrears relates to the period when both the Coronavirus (Scotland) Act 2020 and Coronavirus (Scotland) (No. 2) Act 2020 remains in force
  • the landlord serves notice on their tenant on or after 07 April 2020, and the rent arrears wholly or partially incurred on or after 27 May 2020
  • eviction action is being taken in respect of any assured, short assured or private residential tenancy

The pre-action requirements are for a landlord to:

Provide the tenant with clear information (which can be by writing or email) relating to:

  • the terms of the tenancy agreement
  • the amount of rent for which the tenant is in arrears
  • the tenant’s rights in relation to proceedings for possession of a house (including the pre-action requirements set out in this regulation and the need for an order to be granted by a tribunal)
  • how the tenant may access information and advice on financial support and debt management

Make reasonable efforts to agree a reasonable plan with the tenant to make payments to the landlord of:

  • future payments of rent
  • the rent for which the tenant is in arrears

Give reasonable consideration to:

  • any steps being taken by the tenant which may affect the ability of the tenant to make payment to the landlord of the rent for which the tenant is in arrears within a reasonable time
  • the extent to which the tenant has complied with the terms of any agreed plan
  • any changes to the tenant’s circumstances which are likely to impact on the extent to which the tenant complies with the terms of an agreed plan

Further guidance on how these requirements can be met found in the pre-action requirements section.

The pre-action requirements sets out what landlords should do, as early as possible, before taking action to evict a tenant. Nothing in this guidance prevents a landlord from doing more to support tenants facing financial problems that impact on their ability to pay rent.

Where landlords’ practice already offers greater protection to tenants with rent arrears, that practice should continue. These requirements will help to formalise the good practice that already exists in the private rented sector and should help to sustain tenancies by:

  • creating greater consistency in practice between landlords
  • making sure that landlords and tenants explore other ways of resolving the arrears
  • making sure that eviction for rent arrears is a last resort

For avoidance of doubt, where a landlord is seeking repossession on grounds that do not include rent arrears, the pre-action requirements and this guidance do not apply.

In cases where a landlord is seeking repossession on multiple grounds, which include rent arrears, then the pre-action requirements and this guidance will apply.

Information on how the pre-action requirements interact with the process of repossession of a property can be found in the Pre-action requirements and repossessions section of this document.

Tenants’ rights

Scottish Government considers that the focus should always be on sustaining tenancies wherever possible and that eviction action should be a last resort given the negative impacts on tenants and landlords.

Landlords must at all times respect the rights of their tenants. This includes:

  • if a tenant has received a notice to leave, they do not need to leave the property until an eviction order is granted by the First-tier Tribunal for Scotland (Housing and Property Chamber)
  • if a landlord tries to physically or forcefully remove a tenant from their property without an eviction order, the landlord is committing a crime
  • landlords must notify the relevant local authority when they raise proceedings for possession of a home. This was introduced by Section 11(1) of the Homelessness etc (Scotland) Act 2003 and came into force in 2009

Landlords should be flexible with tenants facing financial hardship and signpost them to the range of support that is available to help tenants pay their rent. Many landlords do all they can to give tenants advice and support and the pre-action requirements being introduced will reflect the approach they already adopt.

Landlords will have differing views about the right time to consider serving a notice on the tenant to seek repossession of the property in response to rent issues. In respect of rent arrears, there are occasions when tenants fall into arrears for short periods of time, sometimes for reasons beyond their control such as banking delays or Universal Credit payment cycles. It is essential that landlords consider all factors and communicate with their tenant before taking action.

Actions to evict tenants without following all of the requirements contained in the relevant legislation are illegal. Attempts to evict a tenant illegally could result in the landlord being convicted of an offence. On indictment, the court can impose an unlimited fine or imprisonment for a term not exceeding two years or both and a conviction will impact on a landlord’s registration. Involvement by an agent in an illegal eviction will also impact on a letting agent’s registration.

Definition of an illegal eviction includes:

  • an illegal eviction is when a landlord, or their agent, fails to follow the proper process for ending a tenancy. The following actions may be illegal and can result in a landlord committing a criminal offence
  • changing the locks to keep the tenant out of the property
  • making life so uncomfortable for a tenant that they are forced to leave their home by for example cutting off water, gas or electricity supplies
  • physically removing a tenant from the property, only a sheriff officer may do this

Templates for landlords

We have developed a series of templates to assist landlords. These are downloadable under supporting files. There is no obligation to use these, and landlords are free to amend or draft their own letters or follow their own processes, but landlords should remember that the Tribunal will consider the extent to which the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 are followed.

The focus is to let tenants know where they can get financial help and other support; as well as to work towards a payment plan to address the arrears. It also refers to SafeDeposits Scotland’s resolution service, as the tenant may be more comfortable working with an independent intermediary, as well as services offered by Shelter Scotland and Citizens Advice Scotland.