31 July 2012

Eviction is Last Resort

Under the Housing (Scotland) Act 2010 a prescribed set of pre-action requirements for social landlords seeking possession come in to force on 1st August 2012.

EHAP welcomes the move to ensure that current good practice must now be adopted consistently by all social landlords. It is widely anticipated the new legislation will lead to a reduction in both court actions and evictions across Scotland.

Pre-action requirements are a list of steps landlords must follow before serving a notice on a tenant. A notice is a formal letter advising the tenant that their landlord is considering court action to recover possession of the property due to rent arrears.  Thus on and after the 1st August 2012 landlords intent on court action must first complete a number of steps designed to safeguard tenants and ensure any vulnerabilities are taken into account.

The pre-action requirements include requirements for the landlord to:

  • Give clear information to the tenant about the tenancy agreement and any unpaid rent or other associated charges;
  • Provide the tenant with access to advice and assistance on access to housing benefit  and other types of financial assistance;
  • Provide the tenant with information about sources of advice and assistance in relation to management of debt;
  • Make reasonable efforts to agree a reasonable payment plan with the tenant for future and outstanding rent and other associated charges;
  • Consider other steps the tenant is taking which are likely to result in payment within a reasonable time, including the likely outcome of a Housing Benefit application;
  • Encourage the tenant to contact their local authority (where the local authority is not the tenant).

EHAP, working closely with partners in City of Edinburgh Council and local housing associations, already strives to ensure eviction is only ever used as a last resort. One of the particular benefits of the new legislation is that it guarantees a fair and equal process for all tenants in the social rented sector, ironing out regional discrepancies and variations in practice between landlords.

Woman atwindow

Pre-Action Requirements - Understanding Reasonableness

The Housing (Scotland) Act 2010 makes a number of references to 'reasonable' efforts under the sections related to pre-action requirements.  In law reasonableness is always defined relative to a particular situation. It is down to the courts to decide whether a landlord's efforts are reasonable by taking into account the particular circumstances of the tenant.

The Scottish Government has issued Guidance for Social-Landlords on Pre-Action requirements to assist landlords with additional advice on how to comply with the legislation. For example to meet the requirement of 14A(3) of the 2001Act to given tenants help and advice  'if landlords are aware that tenants have difficulty in reading or understanding information, landlords should take reasonable steps to make sure that they have appropriately communicated the information in ways the tenant could understand'.

In cases where Landlords feel they have taken reasonable steps to comply with the pre-action requirements but have failed to reach a satisfactory arrangement regarding the ongoing rent and arrears with a tenant, they must be able to evidence these steps have been taken. They may then issue a court summons to the tenant.  Once a court date has been set it will be down to the tenant, or the tenant's representative, to negotiate with the landlord prior to the court date, or to defend the action in court.

It is important to remember than it is never too late for a tenant to seek advice. EHAP advisors are very successful at helping landlords and tenants reach satisfactory arrangements even after court dates have been set, and our court representatives also achieve a high tenancy retention rate for the tenants we represent at court.

Post-Decree

Another advantage of the new legislation is an amendment to the legal position for tenants in rent arrears and landlords post-decree. This means that where social landlords comply with pre-action requirements and are granted possession of a property by the court the tenancy is not ended on a date when the court grants an order. In such cases, the tenancy ends only when the landlord recovers possession of the property.

This is good news because it provides a last chance for tenants and landlords to reach a mutually satisfactory arrangement and avoid eviction. Tenants who have not previously sought legal advice can still do so and may be able to retain their home.

Furthermore, landlords can only exercise their right to recover possession up until a date specified by the court and this date must be within 6 months of the date when the decree was extracted. After this date, if the landlord has taken no action, the tenancy continues as usual and if rent arrears reoccur then landlords must complete the whole process of complying with pre-action requirements again in order to bring the case back to court.

If you are affected by any of the issues raised in this article or know someone who is please contact EHAP on 0845 302 4607 for free, impartial and confidential  information, advice and representation for Edinburgh residents.

 

 

 

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