When granting (or not granting) an eviction order to landlords, the Tribunal now applies a ‘reasonableness’ test. What does this entail?
At the start of the Covid pandemic, the Scottish Government introduced multiple legal restrictions on evictions for private residential tenancies. These evolved at various points between 2020 and April 2024, and most have now been removed. One of the only remaining measures, which looks like it is here to stay, is the introduction of a ‘reasonableness’ test for eviction orders.
When the test is applied
If a landlord serves a valid termination notice and the tenant fails to leave the property by the termination date, the landlord must apply to the First-tier Tribunal for Scotland (Housing and Property Chamber) for an eviction order. Regardless of the grounds for eviction, the Tribunal will only grant an eviction order if it is ‘reasonable’ to do so.
Importantly, the law does not state how the Tribunal should assess when an eviction is ‘reasonable,’ since the Scottish Parliament did not set down any guidelines on this. Furthermore, the Tribunal quickly made it clear that there are almost no limits on what it may consider when assessing ‘reasonableness.’
Likely factors considered
This has, not surprisingly, made it extremely difficult for both landlords and tenants to predict what the Tribunal will think about in any particular case.
Our own experience and scrutiny show that the Tribunal will assess the circumstances of both landlord and tenant, and may look at the following (though this is certainly not an exhaustive list):
- How long the tenant has lived at the property.
- Any family members who live with the tenant.
- The tenant’s ability to find alternative accommodation.
- The tenant’s conduct during the tenancy.
- Attempts by the tenant to resolve the circumstances leading to the eviction (e.g. paying off rent arrears).
- Any health conditions or vulnerabilities of the tenant.
- Attempts by the landlord to try to avoid evicting the tenant.
- The financial disadvantage to the landlord if they were refused an eviction order.
Given that it’s virtually impossible to appeal the Tribunal’s decision about reasonableness, it is essential to prepare a case with arguments about reasonableness in mind, and to take legal advice about what form these arguments should take.
