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Pre-action Requirements in the Private Rented Sector


Pre-action Requirements in the Private Rented Sector

The Rent Arrears Pre-action Requirements (Coronavirus)(Scotland) Regulations 2020 came into effect on 30 September 2020. 

All landlords of Assured and Short Assured tenancies and Private Residential Tenancies must be aware of the pre-action requirements introduced by the Regulations where rent arrears due by a tenant have accrued wholly or partially on or after 27 May 2020. 

Background to the Regulations

The Scottish Government seeks to ensure that no tenant will lose their home as a consequence of financial hardship suffered due to the coronavirus crisis.  The Scottish Government therefore expects landlords to be flexible with tenants facing financial difficulties and to signpost them to sources of financial support available. 

The Regulations are temporary and the Scottish Government hopes that these further measures  will sustain tenancies and prevent homelessness.  Landlords are therefore encouraged to implement the steps outlined in the Regulations as soon as a tenant falls into arrears and to engage early with a tenant about payment arrangements.  The Regulations are designed to create greater consistency in practice between private landlords and ensure that eviction for rent arrears is a last resort

When do the regulations apply?

The emergency measures previously introduced by the Scottish Government on 7 April 2020 in the Coronavirus (Scotland) Act 2020 extended to the notice periods that landlords must give when ending a tenancy and made all grounds for the eviction in the private rented sector discretionary.

Where a landlord makes an application to the First-tier Tribunal Housing & Property Chamber for an eviction order on or after 6 October 2020 the Tribunal will take into account whether or not the landlord has complied with the pre-action requirements detailed in the Regulations in determining whether an eviction order should be granted.

The Regulations do not apply to any other ground of eviction, only rent arrears.

What are the pre-action requirements?

The Regulations stipulate the following pre-action requirements:-

1. The provision by the landlord to the tenant of 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 the Regulations; and
  • How the tenant may access information and advice on financial support and debt management.


2. ​​​​​That the landlord makes reasonable efforts to agree with the tenant a reasonable plan to make payment to the landlord of future rent due and the rent arrears accrued.

3. That the landlord gives reasonable consideration to:-

  • Any steps being taken by the tenant which may affect the ability of the tenant to make payment to the landlord of the rent arrears within a reasonable period of time;
  • The extent to which the tenant has complied with any payment plan agreed; 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 the plan agreed.

Timing

It is in some respects unfortunate that these Regulations have been the brought into effect at a time when many landlords have served notice to tenants some months ago for arrears accrued where the 6 month notice period has already or is imminently due to expire. Had the Regulations been published at an earlier date those landlords could have taken steps to comply with the pre-action requirements during the notice period.

Compliance

Whilst compliance with the Regulations is not mandatory it seems unlikely that, in the absence of exceptional circumstances, a Tribunal will consider granting an order for eviction where the pre-action requirements have not been met.

In an effort to assist landlords to comply with the Regulations the Scottish Government has published template letters for landlords to use in the dialogue with the tenant with regard to the arrears.

Insight from Gillian Buchanan, Dispute Resolution & Claims partner at Thorntons. For more information contact Gillian on 03330 430350 or email gbuchanan@thorntons-law.co.uk

Posted by Gillian Buchanan

Partner

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