Private residential tenancies (PRT)

Pre-action requirements

Where tenants are in rent arrears, proposed new regulations require landlords to take certain steps before raising claims for possession or applying for eviction orders.

Required information

You must give the tenants clear information about:

• The terms of the tenancy agreement;
• The total amount of rent arrears;
• Their rights regarding claims for eviction or possession (including these pre-action requirements); and
• How they can access information and advice on financial support and debt management.

Required action

You must make reasonable efforts to agree with the tenant a payment plan for the arrears and future payments. You must also reasonably consider:

• Any steps they take that may affect their ability to pay the rent arrears within a reasonable time;
• The extent to which they've complied with the terms of the agreed payment (if any); and
• Any changes to their circumstances that are likely to impact the extent to which they comply with the terms of a payment plan.

Serving legal notices

If the tenant has failed to pay rent after you've complied with the pre-action requirements, you can serve legal notices.

You must serve the following legal notice: Notice to Leave (requiring your tenant's removal from the property by a particular date as a result of rent arrears having accrued);

You must give the tenant at least 28 days' notice of the date to leave the property.

If you and your tenant agreed at the start of the tenancy to communicate by email on all matters relating to the tenancy this would now include serving the Notice to Leave by email. If you did not agree to communicate by email the Notice to Leave can be sent by recorded delivery post or Sheriff Officer.

Length of notice you must give

You must give at least 28 days' notice. You must take care to correctly calculate the notice period:

• For service by email or recorded delivery, you must allow the tenant 48 hours to receive it. This delivery time should be factored into the amount of notice you give the tenant.
• For service by sheriff officers, the date of service of the notices is the first day of the 28-day period. You may need to find out when the sheriff officers will be able to serve the notice; this will help you to work out the 28-day notice period. Or you could build a few extra days into the notice period to allow enough time for service of the notice.

If the tenant doesn't move out of the property by the end of the period stated in the notice, or doesn't pay the arrears and reach agreement with you that they can stay, you must apply to the Tribunal for an eviction order before the tenant can be lawfully removed from the property. This may be the best way to control your losses and regain possession of the property. You will require to sue the tenant separately for recovery of the rent arrears in the Sheriff Court.

Applying for an eviction order

To start proceedings you should apply to the First-tier Tribunal. The administration centre is in Glasgow, but if a hearing is required, the Tribunal will arrange it as close as possible to the property address. See The First-tier Tribunal for Scotland (Housing and Property Chamber)

You must apply to the Tribunal no more than six months following the expiry of the notice period.

Before you apply to the Tribunal you must inform the local council because of the potential to create homelessness. A list of local council contact details for notification is available on the gov.scot website.

You must give the Tribunal a copy of the PRT agreement and the Notice to Leave.

What the Tribunal may decide

When the Coronavirus (Recovery and Reform) (Scotland) Bill is passed by the Scottish government, all of the 18 grounds for possession for rent arrears will become discretionary. Prior to this they were:

Mandatory if:

• the tenant has not paid the rent (or some of the rent) for at least 3 months in a row; and
• on the first day of the Tribunal hearing an amount equal to at least 1 month's rent remains unpaid; and
• the reason for the arrears is not a delay or failure in the payment to the tenant of benefits.

If the Tribunal is satisfied on these points it must issue an eviction order.

Discretionary if:

• the tenant has not paid the rent (or some of the rent) for at least 3 months in a row; and
• on the first day that the issue comes before the Tribunal, an amount less than 1 month's rent remains unpaid.

If the Tribunal is satisfied on these points it must then consider if it is right on this basis to issue an eviction order - in this case the Tribunal can look at many things to decide whether it is right to evict, including whether the reason for the tenant not paying the rent is a delay or failure in the payment to the tenant of some benefits, including housing benefit or universal credit.

When relying on discretionary grounds to get an eviction order, you'll need to satisfy the Tribunal that the criteria for the grounds have been met and that it's reasonable in the circumstances to make an order for possession. It can be difficult to persuade the Tribunal; there's no guarantee that you'll get possession of your property when relying on the discretionary grounds for possession.

The Tribunal can take into account a large range of factors including:

• Whether you have complied with the pre-action protocol requirements.
• The frequency of the late payments.
• The length of the delay in payments (a delay in payment over a period of years is more likely to result in an order for possession).
• If it has been caused by factors outside the tenant's control (such as delays caused by housing benefit authorities).
• Whether the tenant can provide a good explanation for the delay or non-payment of rent (such as showing that it's exceptional, or if there's been a change in their personal circumstances, such as being made redundant).
• If the delay has caused you any inconvenience and expense.

If the tenant ignores an eviction order

You must not evict the tenant yourself under any circumstances.

If you've obtained an eviction order and the tenant does not vacate voluntarily, you can instruct sheriff officers to arrange an eviction. The sheriff officers will need to have the eviction order from you and will inform the tenants of a date when an eviction will take place. On that date, the sheriff officers will attend with a locksmith and will change the locks. You don't need to attend.

Be aware that if the tenant refuses to leave after an eviction order has been granted, and if you ask them to pay rent, the Tribunal could rule that a new tenancy has arisen. The tenant will still be liable to pay you damages for continued occupation of the property. You should seek legal advice in these circumstances.

Assured and short assured tenancies

Serving legal notices

If the tenant has failed to pay rent after you've made requests for them to do so, you can serve legal notices.

You must serve the following legal notices on the tenant; you're recommended to serve these notices together:

• Notice to quit (requiring your tenant's removal from the property by a particular date as a result of rent arrears having accrued); and
• Notice of Intention to raise Proceedings under section 19 of the Housing (Scotland) Act 1988 (Form AT6).

You must give the tenant at least 40 days' notice of the date to leave the property.

You can't deliver the notices by ordinary post or personally by hand – these aren't valid methods of service. For the notices to be valid, they must be served by:

• recorded delivery post, or
• sheriff officers.

Notice to quit

The notice to quit needs to be written, but it does not otherwise need to be in a set form. It should be addressed to the tenant and contain the following information:

• The date
• The property address
• The date of expiry of the notice to quit i.e. the date of termination

The minimum notice period is 40 days, which must tie in with the end date (also called the ish date) of the tenancy.

The notice to quit must also contain the following information:

1. Even after the notice to quit has run out, before the tenant can lawfully be evicted, the landlord must get an order for possession from the court.

2. If a landlord issues a notice to quit but does not seek to gain possession of the house in question the contractual assured tenancy which has been terminated will be replaced by a statutory assured tenancy. In such circumstances the landlord may propose new terms for the tenancy and may seek an adjustment in rent at annual intervals thereafter.

3. If a tenant does not know what kind of tenancy he has or is otherwise unsure of his rights he can obtain advice from a solicitor. Help with all or part of the cost of legal advice and assistance may be available under the Legal Aid legislation. A tenant can also seek help from a Citizens Advice Bureau or Housing Advisory Centre.

Length of notice you must give

You must give at least 40 days' notice; you must take care to correctly calculate the minimum 40-day notice period:

• For service by recorded delivery, the day after posting is the first day of the 40-day period. The earliest date of removal to put in your notices is the 41st day thereafter.
• For service by sheriff officers, the date of service of the notices is the first day of the 40-day period. The earliest date of removal to put in your notices is the 41st day thereafter.

You may need to find out when the sheriff officers will be able to serve the notices; this will help you to work out the 40-day notice period before you serve the notices. Or you could build a few extra days into the notice period to allow enough time for service of the notices.

If the tenant doesn't move out of the property by the end of the period stated in the notices, or doesn't pay the arrears and reach agreement with you that they can stay, you may apply to the First-tier Tribunal for an eviction order to evict the tenant. This may be the best way to control your losses and regain possession of the property. You will require to sue the tenant separately for recovery of the rent arrears in the Sheriff Court.

Applying for an eviction order

To start proceedings you should apply to the First-tier Tribunal. The administration centre is in Glasgow, but if a hearing is required the Tribunal will arrange it as close as possible to the property address. See The First-tier Tribunal for Scotland (Housing and Property Chamber)

What the Tribunal may decide

What decision the Tribunal will make will depend largely on whether you're relying on mandatory or discretionary grounds for possession. If you're relying on:

• Mandatory grounds, the Tribunal must make an order for possession of the property; this means that the tenant must leave the property.
• Discretionary grounds, the Tribunal may make an order for possession of the property. The Tribunal may, however, decide to allow the tenant to remain in the property, as long as they meet certain conditions, such as paying the rent by instalments. The case would then be continued to allow payments to be monitored.

Mandatory grounds for possession

To qualify for a mandatory possession order, at least 3 months' rent lawfully due by the tenant must be in arrears, both at the date of the service of the Notice of Intention to Raise Proceedings under Section 19 of the Housing (Scotland) Act 1988 and at the date of the Tribunal hearing.

If you don't satisfy the above criteria by the hearing date then you may rely on the discretionary grounds for possession.

Discretionary grounds for possession

You may rely on discretionary grounds for possession if one of the following criteria is fulfilled:

• Some rent lawfully due hasn't been paid both by the time the possession proceedings have started and when the Notice of Intention to Raise Proceedings under Section 19 of the Housing (Scotland) Act 1988 was served. Note: If the tenant has been offering you rent, and you've refused to take it, the tenant will have a defence to your claim for possession, but must still pay the amount owed.
• Even if there are no current rent arrears, the tenant has persistently failed to pay rent on time.

When relying on discretionary grounds to get an eviction order, you'll need to satisfy the Tribunal that the criteria for the grounds have been met and that it's reasonable in the circumstances to make an order for possession. It can be difficult to persuade the Tribunal; there's no guarantee that you'll get possession of your property when relying on the discretionary grounds for possession.

The Tribunal can take into account a large range of factors including:

• The frequency of the late payments. If just one or two payments have been delayed over a long period of time then the Tribunal may not regard this to be 'persistent'. However, if the rent is habitually paid late then the Tribunal may take a different view.
• The length of the delay in payments (a delay in payment over a period of years is more likely to result in an order for possession).
• If it has been caused by factors outside the tenant's control (such as delays caused by housing benefit authorities).
• Whether the tenant can provide a good explanation for the delay or non-payment of rent (such as showing that it's exceptional, or if there's been a change in their personal circumstances, such as being made redundant).
• What steps you've taken to secure payment of the arrears.
• If the delay has caused you any inconvenience and expense.

If the tenant ignores an eviction order

You must not evict the tenant yourself under any circumstances.

If you've obtained an eviction order and the tenants don't vacate voluntarily, you can instruct sheriff officers to arrange an eviction. The sheriff officers will need to have the eviction order from you and will inform the tenants of a date when an eviction will take place. On that date, the sheriff officers will attend with a locksmith and will change the locks. You don't need to attend.

Be aware that if the tenant refuses to leave after an eviction order has been granted, and if you ask them to pay rent, the Tribunal could rule that a new tenancy has arisen. The tenant will still be liable to pay you damages for continued occupation of the property. You should seek legal advice in these circumstances.