Debt Advice Handbook Scotland - 1st editionChapter 8: Housing debt1. Social housing sector Pre-court processes
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Pre-court processes
Before a landlord can start court action to evict a tenant because they have rent arrears, they must complete a set of pre-action requirements. This ensures an ‘action for possession’ is used only as an option of last resort. An ‘action for possession’ is where the landlord requests the court to grant a decree for eviction to take back control of the property and evict the tenant.
Pre-action requirements
The Housing (Scotland) Act 2010 introduced pre-action requirements that landlords must complete before a notice can be served on a tenant to recover possession of the property due to rent arrears.
These pre-action requirements protect tenants by:
    •creating more consistency in practice between landlords;
    •ensuring landlords and tenants explore different ways to resolve rent arrears;
    •ensuring that eviction is only used when there is no other option.
Before a landlord can go to court to pursue a possession action, they must complete the following actions.1s14A H(S)A 2001
    •Tenants must be given clear information about the terms of the tenancy and any rent or other financial obligation owed to the landlord.
    •Tenants must be given help and advice on their eligibility for help with housing costs or financial assistance.
    •Tenants must be given information on where they can get help to manage debts.
    •The landlord must make a reasonable effort to agree a payment plan including future rent and arrears.
    •The landlord must encourage tenants to contact their local authority.
The landlord must not pursue a possession action before they have considered:
    •universal credit and housing benefit applications;
    •actions the tenants are taking to paid off the arrears;
    •whether the tenants are adhering to an agreed payment plan.
 
1     s14A H(S)A 2001 »
2     scotland.shelter.org.uk/professional_resources/legal/security_of_tenure/eviction/pre-action_requirements_in_rent_arrears_cases#reference-6 »
Notice of proceedings for recovery of possession
Once the landlord has met the pre-action requirements, a notice can be served on the tenants explaining that proceedings for possession of the property can be raised, and the grounds for doing this. This is a ‘notice of proceedings for recovery of possession’ (commonly known as a ‘notice of proceedings’.1ss14 and 14A H(S)A 2001 It must specify:2s14(4) H(S)A 2001
    •the grounds for recovery of arrears;
    •the reason why possession is being sought;
    •the date when recovery proceedings may be raised;
    •steps taken by the landlord showing compliance with the pre-action requirements.
If the grounds for recovery include rent arrears, a section is included listing each pre-action requirement. Landlords mark each action as complete and provide brief details of their actions to comply with the legal requirements.3See Sch 2 The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012 No.92 at legislation.gov.uk/ssi/2012/92/schedule/2/made
 
1     ss14 and 14A H(S)A 2001 »
2     s14(4) H(S)A 2001 »
3     See Sch 2 The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012 No.92 at legislation.gov.uk/ssi/2012/92/schedule/2/made »
When proceedings begin
Possession proceedings cannot begin until at least four weeks after the notice has been served.1s14 H(S)A 2001
Proceedings must take place within six months from when the notice was served. If they do not, a new notice must be served.
You can read more about the grounds for eviction at mygov.scot/eviction-council-tenants/reasons-for-being-evicted.
 
1     s14 H(S)A 2001 »