Rent Arrears
This is not intended as a precise statement of the law. You may wish to seek advice from an advice centre or solicitor engaged in private practice.
If your tenant misses a rent payment then you should contact them and find out why. It may be that they have lost their job or have been signed off work sick and they may be entitled to claim Local Housing Allowance. They may even be waiting for their Local Housing Allowance (LHA) claim to be processed.
Managing Rent Arrears
It is important to act as soon as possible so that the arrears do not build up. When you write to your tenant about rent arrears you should advise them where they can go to seek advice on debt and budgeting. In Orkney the Citizens Advice Bureau provides this service and they can be reached by telephone on 01856875266. A link to their website can be found under the 'Related Sites' section of this page.
Private Residential Tenancies
Using Ground 17 in an Eviction Action
This ground applies if the tenant has been in 'rent arrears' (has owed rent payments of any amount) for three or more months in a row.
If the tenant still owes at least a month's rent by the first day of the Tribunal hearing, the ground is mandatory and the Tribunal must issue an eviction order. The Tribunal must also be satisfied that the arrears were not due to a delay or failure in the payment of a relevant benefit.
If the tenant owes less than a month's rent (or is no longer in arrears) by the first day of the Tribunal hearing, the ground is discretionary and the Tribunal will decide whether it is reasonable to issue an eviction order. In deciding whether it is reasonable to evict, the Tribunal will consider whether the tenant being in arrears is due to a delay or failure in the payment of a relevant benefit.
Assured and Short Assured Tenancies
Using Ground 8 in an Eviction Action
If you believe that your tenant can afford the rent and is simply choosing not to pay it, then you may wish to consider eviction action. Once the arrears are over 3 months rent you are entitled to seek possession using Ground 8 of the Housing (Scotland) Act 1988.
Please note: if you are using Ground 8, the arrears must be at least the equivalent of 3 months rent both at the time of serving the notice and at the time of the tribunal hearing.
Ground 8 is a mandatory ground, so provided the arrears are over 3 months and you can show that all the rent is lawfully due you should be granted an eviction order.
Other Grounds for Eviction
However you can also use Ground 11 - persistent delay in paying rent, and Ground 12 - some rent lawfully due, if you wish. Please note that these are both discretionary grounds and therefore you are not guaranteed to be granted an eviction order.
