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Tenancy types and procedures
The first step in giving housing advice is to determine the type of tenancy, the legislation it is covered by and the legal procedures that can be used to evict a client.
    Tenancies that began before 1 December 2017 are assured and short-assured tenancies and are regulated by the Housing (Scotland) Act 1988.
    Tenancies that began on or after 1 December 2017 are private residential tenancies) and are regulated by the Private Housing (Tenancies) (Scotland) Act 2016.
Short-assured tenancies and assured tenancies
A short-assured tenancy under the Housing (Scotland) Act 1988 is one where you rent from a private landlord or letting agent and:1s32 H(S)A 2001
    the tenancy started after 2 January 1989 but before 1 December 2017; and
    the initial tenancy agreement was for at least six months; and
    before the tenancy started, the landlord issued an AT5 form.2gov.scot/publications/form-at5
If no AT5 form was issued, the client has an assured tenancy.
A short-assured tenancy has an end date, but a landlord has to follow the right process if they want the client to leave. Otherwise, the tenancy is automatically renewed. This is called ‘tacit relocation’.
A model short-assured tenancy agreement is at gov.scot/publications/private-residential-tenancy-model-agreement.
Assured tenancies are those which are not short-assured tenancies and were issued before 1 December 2017. They are regulated by the Housing (Scotland) Act 1988.
The procedures for eviction are very similar and the landlord must also take the client to the tribunal if they want to evict them.
The client should also have a lease agreement where the terms of the let are stated. It is essential to obtain a copy and check the agreement is valid.
 
Grounds for eviction
Under an assured and short-assured tenancy agreement, there are varying ways that a landlord can evict a tenant. The landlord must specify which ground for eviction they are using.
The full grounds for eviction are in Schedule 5 of the Housing (Scotland) Act 1988.3Sch 5 H(S)A 1988 Normally, repossession is on grounds 11 or 12 for rent in arrears being ’lawfully due’.4Sch 5 H(S)A 1988 (grounds 11 and 12)
The tribunal will not make an order for repossession unless it thinks it is ’reasonable to do so’.5s18(4) Sch 5 H(S)A 1988
Where there has been a delay in universal credit (UC) or housing benefit (HB), or the landlord has not properly carried out the pre-action protocol, the tribunal can refuse to award repossession.6s4A(a) and (b) H(S)A 1988
 
Pre-action protocol
The pre-action protocol only applies to cases where the ground for repossession is rent arrears.7s18 H(S)A 1988
The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 brought in pre-action requirements which all private sector landlords must now follow.8Regs 3 and 4 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 No.304, amended by s8 H(S)A 1988 and Sch 3 Private Housing (Tenancies) (Scotland) Act 2016 The requirements are that the landlord must:9The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 No.304
    provide the tenant with clear information about:
      the terms of the tenancy agreement; and
      the amount in arrears; and
      the tenant’s rights in relation to proceedings for possession of a house (including the pre-action requirements); and
      how the tenant can accesses information and advice on financial support and debt management; and
    make reasonable efforts to agree with the tenant a reasonable plan to make payments of:
      future payments of rent; and
      the arrears; and
    reasonably consider:
      steps being taken by the tenant which may affect the ability of the tenant to pay arrears within a reasonable time;
      changes to the tenant’s circumstances which are likely to impact on the extent to which the tenant complies with the terms of an agreed plan.
 
Notice to quit and notice of proceedings
When a landlord wants to evict a tenant, they must first serve them with a ‘notice to quit’10edinburgh.gov.uk/downloads/file/24948/notice-to-quit-form-pdf and a ‘notice of proceedings’ (also known as an AT6 notice).11gov.scot/publications/form-at6
The tribunal has the power to dispense with this if it deems it reasonable.12s19(1)(b) and Sch 5 H(S)A 1988
The landlord must begin proceedings within six months of serving the AT6.13s19(7) and Sch 5 H(S)A 1988
 
Section 11 notice
Along with the notice of proceedings, the landlord must also serve a ’section 11’ (Homelessness etc. (Scotland) Act 2003) notice to the local council where the property is situated.14s19A H(S)A 1998 This informs the local authority that the landlord is seeking repossession.15s11 Homelessness etc. (Scotland) Act 2003 The landlord must have proof of sending a section 11 notice to the local authority.
 
1     s32 H(S)A 2001 »
3     Sch 5 H(S)A 1988 »
4     Sch 5 H(S)A 1988 (grounds 11 and 12) »
5     s18(4) Sch 5 H(S)A 1988 »
6     s4A(a) and (b) H(S)A 1988 »
7     s18 H(S)A 1988 »
8     Regs 3 and 4 The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 No.304, amended by s8 H(S)A 1988 and Sch 3 Private Housing (Tenancies) (Scotland) Act 2016 »
9     The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 No.304 »
12     s19(1)(b) and Sch 5 H(S)A 1988 »
13     s19(7) and Sch 5 H(S)A 1988 »
14     s19A H(S)A 1998 »
15     s11 Homelessness etc. (Scotland) Act 2003 »
Private residential tenancies
On 1 December 2017, a new type of tenancy – the private residential tenancy – came into force, replacing the assured and short assured tenancy agreements for all new tenancies.
These are covered in the Private Housing (Tenancies) (Scotland) Act 2016.
 
Grounds for eviction
There are 18 grounds for eviction.1Sch 3 PH(T)(S)A 2016
The tribunal can issue an eviction order where the client is three months or more in arrears and the tribunal believes it is reasonable to do so.2Sch 3 para 12(1) PH(T)(S)A 2016 However, before issuing an order, the tribunal must consider:3Sch 3 para 12(4) PH(T)(S)A 2016
    whether the arrears are wholly or partly because of a delay or failure in the payment of a relevant benefit (eg, UC or HB); and
    the extent to which the landlord has complied with the pre-action protocol.
 
Pre-action protocol
A landlord in an action for repossession must comply with the pre-action protocol (see here).
Advisers should check whether the pre-action protocol has been adequately followed by the landlord, as failure to do so can result in the action being dismissed.
 
Notice to leave
A tenant with a private sector tenancy must be served with a ‘notice to leave’. A copy of the notice is set out in Schedule 5 of the Private Residential Tenancies (Prescribed Notices and Forms) (Scotland) Regulations 2017.4legislation.gov.uk/ssi/2017/297/schedule/5/made
The notice period for rent arrears is 28 days.5s54 PH(T)(S)A 2016
If the client decides not to leave, the landlord must apply to the tribunal for an eviction order.
 
1     Sch 3 PH(T)(S)A 2016 »
2     Sch 3 para 12(1) PH(T)(S)A 2016  »
3     Sch 3 para 12(4) PH(T)(S)A 2016 »
5     s54 PH(T)(S)A 2016 »
Application to the tribunal
The application to the tribunal (known as ’civil proceedings’) depends on which type of tenancy the client has.
Civil proceedings applications are for issues not covered by a specific rule, but that arise from the relevant type of tenancy – eg, an application for a payment order for rent arrears. Civil proceedings applications can be submitted alone by the tenant or the landlord, or they can be submitted together with an eviction application by the landlord.
There are also some rules which apply across the board to all tenancy agreements.
Payment order and eviction order
When making an application to the tribunal, a landlord will more than likely make two applications: one for a payment order (for rent arrears) and the other for eviction (repossession and eviction).
The payment order is easier to deal with as there are several solutions available. It is up to the client or their representative to convince the tribunal that the order for eviction should not be given. This is at the discretion of the tribunal.