Understanding First Tier Tribunal Eviction Proceedings
In December last year the Private Housing (Tenancies) (Scotland) Act came into force and changed the private rental sector in Scotland. Short Assured Tenancies (SATs) were replaced with a new default tenancy – the Private Residential Tenancy (PRT). One year on from the launch of PRTs we’re still witnessing some difficultly navigating these new procedures in situations where clients are dealing with tenants who are in arrears. Landlords will find there is a lot that is familiar about the new PRT with many of the obligations and responsibilities of landlords and tenants remaining unchanged. However, there are some distinct and very important differences which we will go some way in helping landlords when ending a PRT.
Terminating a PRT is where the new act really differs as they have no end date and there is no direct replacement for the previous ‘no-fault’ procedure limiting the options for termination. There are only three circumstances where they can be terminated:
- By the Tenant where they must provide 28 days’ notice to leave (or such other period as agreed between the parties in writing).
- Consensual Termination. In these circumstances, the Landlord must serve a Notice to Leave, normally giving 28 days’ notice, and placing reliance on an eviction ground contained within schedule 3 to the Private Housing (Tenancies) (Scotland) Act 2016. Thereafter, the Tenant must vacate voluntarily.
- Eviction Order where the Landlord must serve a Notice to Leave normally giving 28 days’ notice and placing reliance on an eviction ground contained within schedule 3 to the Private Housing (Tenancies) (Scotland) Act 2016.
In our experience these Notices served on tenants need to be accurate and clear in their intentions. If clients need to follow through to the Tribunal stage described below we have witnessed little leeway at the Tribunal in terms of allowing for errors to be rectified.
Under the new act civil cases will no longer be dealt with as Summary Cause Actions raised within the Sheriff Court. Tenant evictions and all new possession proceedings, whether these are regarding SATs or PRTs, are now the responsibility of the First Tier Tribunal (Housing and Property Chamber) – which replaces the Private Rented Housing Panel (PRHP). The Housing and Property Chamber will now take over the sheriff court’s function in dealing with, among other things, eviction actions and rent arrears claims whether under SATs or under the new tenancies. There will be no fee payable to make an application to this Tribunal. The Tribunal is based in Glasgow but hearings take place at locations throughout the country.
If the Tenant fails to leave after receiving Notice the Landlord can then apply to the Tribunal for an eviction order. In total there are 18 grounds for evictions - eight mandatory, eight discretionary, and two ‘mixed’ meaning that they may be mandatory or discretionary depending on the circumstances. It is the latter category that rent arrears fall under, however they remain mandatory if the tenant has owed rent for 3 or more consecutive months or the tenant owes at least one month’s rent at the start of the day on which the Tribunal first considers the case. Outside of these circumstances rent arrears are classed as discretionary grounds for eviction.
It is worth noting that if clients have not ensured the tenancy agreement clearly sets out the basis for charging for legal representation then no legal or recovery costs can be billed to the debtor if there was no written contract term to this effect. In these cases landlords may wish to handle the process of attending the tribunal themselves to restrict costs, but they are also free to instruct an agent/ solicitor to attend the tribunal on their behalf and cover the costs themselves.
Our experienced team here at AMA can ensure all initial documents instructed to be served by either solicitors or parties directly are served in a timely manner. Once proceedings are complete and an order for eviction has been granted we then need to receive an extract of to do so in the most professional and efficient manner possible to make it a smooth transition for all parties involved.