The route favoured by landlords for eviction of tenants in the private rented sector, prior to the pandemic, usually involved utilising one of the mandatory grounds for eviction contained in the various acts dealing with the different types of tenancy. This route generally ensured that landlords would be on the path of certainty and least resistance.

In response to the pandemic, all mandatory grounds for eviction were converted, on a temporary basis, to discretionary grounds. The First-tier Tribunal became obliged to assess whether it was reasonable to grant an eviction order in all cases. This meant that even if a landlord had a ground for eviction, the First-tier Tribunal was not required to grant an order unless the landlord was able to produce evidence showing that it would be reasonable to do so.

Additionally a set of pre- action requirements were introduced in cases where eviction was sought based on rent arrears.

Reasonableness of eviction and the pre-action protocol

On 28 June 2022 the Scottish Government passed the Coronavirus (Recovery and Reform) (Scotland) Bill which comes into effect on 1 October 2022. On this date, the temporary changes mentioned above will become permanent. The Tribunal will be required to assess whether it is reasonable to grant the order in all eviction cases. This brings the private sector into line with the social rented sector.

The pre-action requirements, will also become permanent on 1 October 2022 with a new name “the pre-action protocol”. This requires landlords who are seeking possession on the basis of rent arrears to comply with certain specified actions prior to pursuing eviction.

The Tribunal in assessing the reasonableness of eviction in such cases, is required to consider the extent to which the landlord has complied with the pre-action protocol. This protocol requires landlords to try to make payment arrangements with tenants, to signpost them to sources of financial and debt advice and to ascertain whether any other steps can be taken by a tenant to deal with arrears before eviction action commences.

It was anticipated that new regulations would be published, however, the Bill provides that the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 will continue in force with the reference to pre-action requirements being replaced with the term “pre-action protocol”. Accordingly, it does not appear that a change to processes and procedures will be required where prepared in accordance with the 2020 Regulations.