The Scottish Government has published a draft of the ‘Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020’ which are due to apply to any applications made on or after 6 October 2020 for eviction on the basis of rent arrears.
In terms of the Coronavirus (Scotland) Act 2020 and the Coronavirus (Scotland) Act (No 2) 2020, the process for pursuing eviction of (among other tenancy types) Assured, Short Assured or Scottish Private Residential Tenancies was temporarily changed to provide protection to tenants during the worst of the Covid-19 outbreak.
The changes apply to any tenancy where a Notice to Quit or a Notice to Leave was served after 6 April 2020. Guidance on the changes can be found in our Covid-19 hub.
The above legislation also conferred powers on the Scottish Ministers to introduce a “pre-action protocol” which would apply to applications for eviction based on Ground 8 (for Assured or Short Assured Tenancies) or Ground 12 (for Scottish Private Residential Tenancies). In terms of this temporary legislation, the First-tier Tribunal will only grant an order for eviction based on these rent arrears grounds if it is held by the Tribunal to be “reasonable” in all the circumstances. When considering whether it is reasonable to grant an order for eviction based on rent arrears, the Tribunal is to consider the extent to which the landlord has complied with the pre-action requirements.
Now that the pre-action requirements have been prescribed, it is clear that any landlord currently waiting to raise proceedings should be prepared to follow and prove that they followed the pre-action requirements.
Pre-action requirements:
The First-tier Tribunal must take into account the extent to which the landlord provided the tenant with clear information 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 these regulations), and
- how the tenant may access information and advice on financial support and debt management.
The First-tier Tribunal must also take into account any reasonable efforts made by the landlord to agree with the tenant a reasonable plan to make payments to the landlord of:-
- future payments of rent, and
- the rent for which the tenant is in arrears.
Finally, the First-tier Tribunal must take into account whether the landlord has taken reasonable consideration of:-
- 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 payment plan agreed to, and
- any changes to the tenant’s circumstances which are likely to impact on the extent to which the tenant complies with the terms of a payment plan agreed to.
Most prudent landlords and letting agents should already be satisfying many of the above requirements. However, as there has not yet been any guidance issued or eviction cases which detail how the requirements will be considered by the First-tier Tribunal in practice, it remains to be seen how difficult is has now become to evict tenants on grounds which until recently did not involve any discretionary power on the Tribunal’s part.
It should be noted that in practice the pre-action requirements only apply to eviction applications based on notices which were served after 6th April 2020. It is however likely that a large proportion of landlords currently pursuing eviction on rent arrears grounds will be subject to the pre-action requirements.
The Scottish Government also recently confirmed the temporary changes made by the Coronavirus Scotland Act will remain in force until at least March 2021. Landlords and letting agents would therefore be best advised to satisfy (and show they are trying to satisfy) the requirements as much as possible.
If you have any further questions or queries, please contact:
Adam Gardiner, Solicitor
adamgardiner@lindsays.co.uk
0131 656 5752
