Please note there is a new blog on the Scottish Governments plans to extend the Cost of Living (Tenant Protection) (Scotland) Act 2022 published on 9 June 2023.
Last updated: 3 October 2022
On 6 September 2022, the Scottish Government announced in the Programme for Government (PfG) that emergency legislation would be introduced to implement a rent freeze for tenants in private rented and social housing, and a moratorium on evictions.
The Cost of Living (Tenant Protection) Scotland Bill, containing the rent freeze measures, was introduced in the Scottish Parliament on Monday 3 October. The Stage 1 debate focussing on the general principles of the Bill will take place in the Chamber on the afternoon of 4 October with the Stage 2 detailed amendments being considered on Wednesday 5 October and the final Stage 3 debate on Thursday 6 October.
The Bill is available on the Scottish Parliament’s Bills webpage and the Scottish Government has published information on the measures in the Bill. The detail of the Bill may change so we will update the blog after the Bill has completed its parliamentary stages.
In the meantime, this blog provides some background information. Another blog provides background on the planned rent freeze.
What’s the current process to evict a tenant?
The exact procedures depend on the type of tenancy agreement in place and what the relevant legislation says about how those agreements should be ended.
There is separate legislation for social rented sector tenants and private rented tenants.
Tenants in the social rented sector will have a tenancy agreement governed by the Housing (Scotland) Act 2001.
Within the private rented sector there are different tenancy arrangements. Since 1 December 2017, new tenancies will be a private residential tenancy governed by the Private Tenancies (Scotland) Act 2017. The most common other type of tenancy is the short assured tenancy, governed by the Housing (Scotland) Act 1988.
Shelter Scotland has a useful tenancy checker tool for anyone who is unsure which tenancy they have.
Social sector landlords need to get approval from the Sheriff Courts to evict a tenant. In private rented cases, if a tenant does not leave at the end of the notice period the landlord would need to get an eviction order from the First-tier Tribunal (Housing and Property Chamber) (see figure below).
If a landlord tries to end a tenancy without following the correct procedures or has harassed the tenant into leaving their home early, this may be an illegal eviction which is a criminal offence.
Any tenant concerned about the threat of eviction could seek further advice from an advice provider such as a Citizens Advice Bureau or Shelter Scotland.
Previous ‘eviction ban’ during the coronavirus period
For a limited time between 11 December 2020 and the first half of 2021, previous emergency coronavirus legislation ‘banned’ evictions except where the eviction was because of antisocial or criminal behaviour. The ban was linked to the Protection Levels in place at that time. When areas moved to below Protection Level 3 the ban was lifted.
The effect of the temporary legislation was to stop the enforcement of eviction orders, i.e. Sheriff Officers could not remove a household from a property after a court or Tribunal eviction order had been made (the last part of the process as described in Figure 1.)
Other parts of the eviction process could still go ahead. Landlords could still serve notice to end a tenancy, the Tribunal or courts could still decide on eviction cases and eviction orders could still be granted. A previous SPICe briefing contains information on the coronavirus legislation.
It’s not clear if a similar approach will be taken with the forthcoming legislation.
Scale of evictions from rented housing
There’s a lack of comprehensive data on evictions in the private rented sector.
In its statistical report for 2020-21, the Tribunal notes that it approved 462 eviction orders. It’s not clear how many of these eviction orders were enforced, and if so, at what time of year they were enforced.
The number of evictions granted only represents a small proportion (0.1%) of the approximate 360,000 households living in private rented housing.
However, the Tribunal statistics only provide a partial picture. Some private tenants who have been served a notice to end their tenancy may leave before, or at the end of, the notice period so the cases will never go to the Tribunal. As the New Deal for Tenants consultation noted:
“Most tenancies in the private rented sector that are brought to an end by a landlord are not formally challenged by the tenant and we therefore have limited data on the number of notice to leaves being issued in Scotland.”
Scottish Government (2022) A New Deal for Tenants -draft strategy consultation
Homelessness statistics for 2021-22 shows that of around 15% of homelessness applicants (5,290) previously lived in private rented housing (although it’s not clear how many of these left because of an eviction).
Social landlords have emphasised the work they carried out to maintain tenancies and prevent eviction. Sometimes even though court action is initiated this will not result in an eviction as arrangements to save the tenancy can still be agreed.
In 2021-22, social landlords initiated 1,803 court actions for eviction, with a total of 328 properties recovered. This is below the numbers in 2019-20 when 10,431 court actions were initiated with 1,866 properties being recovered. Again its not clear how many evictions take place over the winter period.
Scottish Government consultation on longer term changes to winter evictions
The Scottish Government is preparing a new strategy for a rented sector in Scotland, with the aim of improving accessibility, affordability, choice, and standards across the whole rented sector.
Earlier this year, the consultation paper A New Deal for Tenants – draft strategy consultation sought views on plans for new restrictions on evictions in winter following a commitment made in the Scottish Government and Scottish Green Party: shared policy programme.
As the consultation paper stated:
“We know that being asked to leave a tenancy and finding alternative accommodation can prove a stressful and difficult time at any time of the year for tenants. However, during winter, particularly around the festive period, this can be exacerbated by a reduction in available properties to let, disruption to services due to staff holidays and people facing increased costs (such as utilities) and are at greater risk of financial hardship.”
Scottish Government (2022), A New Deal for Tenants – draft strategy consultation
Views were sought on a range of interventions to support tenants when they have been given a notice by their landlord during the winter period, for example, the introduction of extended notice periods in relation to most repossession grounds during the winter period.
In addition, views were sought on introducing a specific requirement on the Tribunal and Courts that, in using their discretion, they would be specifically required to consider delaying the enforcement of an eviction order or decree during the winter period except in cases of antisocial or criminal behaviour.
An analysis of consultation responses revealed that in response to this last question that a substantial majority – 91% agreed with the proposal. However, a majority of non-campaign respondents, 76%, did not think it should not be introduced. The analysis reported:
Comments tended to be brief, with those who did agree often simply stating that the winter period should be a circumstance that means that Tribunals and Courts delay the granting of an eviction order. Other comments in support included that better protection for tenants would be welcome, although some queried whether it would simply be better to preclude all evictions during winter, and not just some.
The most frequently made point by those who disagreed was that, in relation to the PRS, a specific requirement is not necessary as the Tribunal already can and does delay evictions taking place when they consider it necessary in a particular case.
Scottish Government (2022), A New Deal for Tenants: consultation analysis
The Scottish Government plans to publish the final rented sector strategy later this year and a housing bill to implement some of the proposals that require legislative change is planned for introduction to the parliament before June 2023 (although these plans may be subject to change).
Emergency legislation
Some of the detail that might be useful to clarify or scrutinise during the parliamentary process of the emergency legislation include:
- When will the moratorium on evictions take effect and how will it be applied.
- Whether the moratorium will exclude eviction cases for antisocial behaviour as the previous eviction ban did.
- How many tenants might benefit from this measure.
- How might private landlords be affected.
- How will tenants and landlords be made aware of the changes.
- How will the evictions moratorium be monitored to inform longer term legislative change.
- How will the other parts of the emergency support package be used to prevent landlords seeking eviction in the first place.
- Will this prevent homelessness and how will this affect council’s duties to assist those who are threatened with homelessness.
Kate Berry, Senior Researcher, SPICe
Cover image: SPICe