Streamlined eviction process - criminal or antisocial behaviour: statutory guidance for social landlords

1. Introduction and Background

1.1 Tenancy agreements should set out the level of behaviour expected from tenants, members of their household or visitors to their home, and make it clear to tenants that they are responsible for the behaviour of others in, or visiting their home. The tenancy agreement and other tenancy information such as tenant handbooks should also make it clear to tenants that breaking their tenancy agreement as a result of antisocial behaviour may result in legal action to evict them. Tenants are responsible for ensuring that they keep to the conditions of their tenancy agreement.

1.2 Antisocial behaviour can have a serious impact on individuals and communities. Antisocial behaviour needs to be clearly defined and identified, and tackled quickly and effectively when it arises. How it will be addressed should be set out in each social landlord’s Antisocial Behaviour Strategy/Policy. Early identification and close working arrangements between partners such as the police, local authorities, registered social landlords, and voluntary sector organisations can help to prevent antisocial and criminal behaviour escalating, and eliminate the need for costly court action at a later stage.

1.3 The Antisocial Behaviour etc. (Scotland) Act 2004 and the Housing (Scotland) Act 2001 (‘the 2001 Act’) set out a range of measures that landlords and their partner agencies can take to help address antisocial behaviour. The Scottish Social Housing Charter also contains an outcome that covers the role of landlords in working with others to tackle antisocial behaviour.

1.4 To complement the existing measures available to landlords to address antisocial behaviour in, or in the locality of a social housing tenancy, a number of new provisions were introduced in the Housing (Scotland) Act 2014 (‘the 2014 Act’). These measures include:

• a new short Scottish secure tenancy for antisocial behaviour (section 7 of the 2014 Act)
  (Further information on this can be found in the guidance on ‘Short Scottish Secure Tenancies for Antisocial Behaviour and Other Miscellaneous Changes to Short Scottish Secure Tenancies’);
• a power for landlords to extend the term of some short Scottish secure tenancies by six months, including those related to previous antisocial behaviour, where housing support services are being provided (section 10 of the 2014 Act) (Further information on this can be found in the guidance on ‘Short Scottish Secure Tenancies for Antisocial Behaviour and Other Miscellaneous Changes to Short Scottish Secure Tenancies’); and
• a new streamlined eviction process where there has been a recent criminal conviction punishable by imprisonment for tenancy related antisocial or criminal behaviour (section 14 of the 2014 Act) within the previous 12 months.

1.5 This statutory guidance will help landlords to use the new streamlined eviction process contained in section 16(2)(aa) of the 2001 Act inserted by section 14(2) of the 2014 Act. The legislation is shown in a consolidated way in Annex A (including amendments made by the Housing (Scotland) Act 2010).

1.6 This new provision gives landlords the flexibility to choose whether to use a streamlined process for eviction in certain cases where a tenant (or any one of joint tenants), a person living in, or lodging in the house, a subtenant or a person visiting the house has been convicted of an offence punishable by imprisonment within the previous 12 months.

1.7. There is also secondary legislation which landlords must follow when using the streamlined eviction process. These are:

• The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012;
• The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Amendment Regulations 2018 which amend The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012 to reflect the terms of section 16(2)(aa) of the 2001 Act^[1]; and
• The Housing (Scotland) Act 2014 (Commencement No. 8, Savings, Transitional and Supplemental Provisions) Order 2018 which sets 1 May 2019 as the date the streamlined eviction provision comes into force. The Order also makes a savings provision where a court action has commenced or a notice has been served before that date so that the powers available to the court to make an order for recovery of possession are those that existed prior to the commencement of section 14(2)(a) of the 2014 Act.

1.8 This guidance and this new provision will take effect from 1 May 2019. The new streamlined eviction process does not apply where landlords have already served a notice on a tenant before 1 May 2019 and which is in force on the date that court action is raised.