Tenants of private landlords are set to benefit from greater protection following new Scottish Government rules.

Known as pre-action requirements (PARs) the new rules, which came into force on October 6, will require landlords to follow new protocols before they begin legal proceedings to evict a tenant, if any of the rent arrears they are pursuing them for are for the period after May 26, 2020.

What are pre-action requirements (PARs)? 

PARs outline what landlords are expected to do before they raise an action to evict a tenant in Scotland. These actions, which can be to recover rent arrears and to evict a tenant, are raised in the First-Tier Tribunal for Scotland (Housing and Property Chamber). This is the legal tribunal, which is the equivalent of a court of law in Scotland, that can grant eviction orders against private sector tenants.

If the landlord does not comply with the rules, then the tribunal can consider to what extent they have failed to do so and decide not to grant an eviction order against the Tenant.

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What other action has the Scottish Government taken to protect tenants? 

The rules are part of a package of measures that have been introduced by the Scottish Government to protect tenants who have got into rent arrears since April 7, 2020 and include a measure that requires landlords to give tenants six months’ notice before they raise an action to evict them. Previously, this period was only 28 days.

They also give the tribunal the discretion to not evict a tenant, whereas previously, the tribunal had to grant an order if the landlord could show the tenant:

  • Had been in arrears for three months or more, when the action was raised; and
  • Still owed more than a month’s rent when the tribunal case was heard.
  • The new rules are, therefore, an additional measure intended to help people facing eviction.

What are the new rules? 

Under the new rules, if a tenant has accrued any arrears after May 26, 2020 a landlord must provide the tenant with the following:

  • Clear information about their tenancy agreement, their rent arrears, and what their rights are before the action is raised.
  • Information about financial support and where they can obtain advice on debt management.
  • The landlord must also make reasonable efforts to enter a repayment plan with the tenant concerning their arrears and the payment of future rent.

What if your circumstances have changed?

The PARs require landlords to consider whether a tenant’s circumstance have changed since they got into arrears.

That means they must consider any steps the tenant is taking that may affect their ability to repay their rent within a reasonable period. This could include trying to get debt advice or applying for benefits, such as Discretionary Housing Payments, from their local council, or applying for Universal Credit.

Landlords must also consider to what extent the tenant has complied with any repayment plan they have entered into with the landlord. So, if they have been maintaining payments that will see the arrears paid off over a reasonable period, this is important.

Finally, if the tenant has entered a repayment plan, landlords must also consider whether a change in the tenant’s circumstances may affect their ability to maintain future payments to the plan, for example if they secure a job that allows them to maintain their payments, or lose a job that enables them to apply for Universal Credit to help with their housing costs.

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What if the landlord does not comply with the PARs?

Where the landlord does not comply with the pre-action requirements, it does not mean that an eviction order will not be granted, as ultimately this is a matter for the tribunal to consider.

How the tribunal treats non-compliance remains to be seen, but it is likely that, where a tenant has been taking reasonable steps – by trying to obtain advice, apply for benefits, and enter into a repayment plan with the landlord – any non-engagement by the landlord will be viewed unfavourably, particularly as the tribunal now has discretion as to whether or not it grants an eviction order.

It will, therefore, be advisable for tenants to seek advice on rent arrears, and for landlords who are hoping to raise an action to make sure they have taken all reasonable steps before they do so.

If you are struggling financially because of the coronavirus and require free advice, speak with a Carrington Dean advisor on 0808 253 3460.