When it comes to applying for an eviction order, what might be considered “reasonable” is a significant test facing Scotland’s private rental sector landlords. Yet the weight of that “reasonableness” test on some key decisions is perhaps not as widely appreciated as it should be - particularly when it comes to evictions, in whatever circumstances.
Before they were abolished during the coronavirus pandemic, “mandatory” evictions could be used to terminate certain residential tenancies. Under these rules, so long as the landlord demonstrated their grounds for eviction - and served a valid notice - a tenant would be unable to stop themselves from being evicted.
Now, however, if a tenant wants to try and stop the First-tier Tribunal for Scotland (Housing and Property Chamber) from granting an eviction order, the Tribunal will only grant the eviction order against them on three grounds:
- An eviction ground applies.
- The landlord has served a valid notice to terminate the tenancy.
- It is “reasonable” that the eviction order be granted.
And it is that “reasonable” clause which we are finding is often not demonstrated fully - even when the landlord’s actions are perfectly reasonable in the legal sense. This makes it vital that the reasons for eviction can be properly demonstrated.
It is important to acknowledge that the law currently does not state how the Tribunal should assess when an eviction is reasonable.
The Tribunal itself has provided clarity through its actions, demonstrating that there are virtually no limits to what it may take into account when assessing if an eviction is reasonable. That makes it nigh-on impossible to predict which factors will carry weight in any case.
Furthermore, it is almost impossible to appeal the Tribunal’s decision about reasonableness even if you think they got it wrong. It is therefore important to prepare a case with reasonableness arguments in mind.
Based on our wide experience of eviction cases, factors which affect reasonableness could include:
- How long the tenant has lived at the property and who lives with them.
- Their ability to find alternative accommodation.
- If they have young children, whether they are able to find alternative accommodation within the same school area.
- The tenant’s conduct during the tenancy.
- Any rent arrears.
- Any attempts by the tenant to resolve the circumstances leading to the eviction (eg paying off arrears).
- Health conditions or vulnerabilities.
- Attempts made by the landlord to try to avoid eviction.
- Whether - and to what extent - the relationship between the landlord and tenant has broken down.
- Whether, despite the eviction grounds being satisfied, the landlord wants to evict the tenant for another reason.
- The financial disadvantage which would be suffered by the landlord if they were refused an eviction order.
In cases where a landlord seeks to evict based on the grounds they are selling the property, or because they are moving into it themselves, they must demonstrate that this has happened or is likely to happen. Tenants could otherwise pursue them afterwards and seek compensation.
While we know that Tribunals will assess the circumstances of the landlord and tenant in reaching decisions, we also know that many landlords who have not taken professional legal advice fall into the trap of not realising that the reasonable test exists.
Naturally, everyone wants to be reasonable. For landlords, demonstrating that they are acting reasonably in any eviction has never been more important. Failing to do so from the outset could have a significant impact.
Adam Gardiner, Associate in our Dispute Resolution and Litigation team.
This article featured in the summer issue of Landlord Focus magazine in August 2024.
