You are a private-sector tenant taken to the tribunal for rent arrears

Are you a private-sector tenant

It's important to know whether you are a private-sector tenant or a public-sector tenant because the eviction process the landlord needs to follow is different for each.

If you’re a private tenant you will normally be renting your home from a private individual or through a private company, like a letting agency. However, there are different types of private tenancy and the rules for eviction can vary for each.

The following are types of private tenancies:

• Private residential tenant
• Short assured tenant
• Assured tenant
• Common law tenant or non-tenant occupier
• Regulated tenancy

Your tenancy agreement should explain what type of tenancy you have and your rights.

You can find further information to help you check what your tenancy is on the following pages or website:

• Types of private tenancies
• Types of public tenancies
• Tenancy checker on the Shelter Scotland website.

You can also go to your local Citizens Advice Bureau for advice about the type of tenancy you have - where to get advice.

If you are not a private-sector tenant you can check Public-sector tenants taken to court for rent arrears.

What can happen if you have rent arrears

Contact your landlord straight away and let them know your situation. If you have rent arrears your landlord might go to the First-tier Tribunal (Housing and Property Chamber) to get you to pay back the arrears and to evict you. The landlord will be trying to get an eviction/possession order and possibly a payment order for the rent arrears. The First-tier Tribunal can give you time to pay if you apply for this during the proceedings or at the end of the tribunal.

Even if your landlord takes you to the tribunal to evict you, you might be able to come to an agreement with your landlord if you agree to pay back the money you owe and you don't fall behind with your rent again.

If you are a private residential, assured or short assured tenant, there are steps your landlord should take before they start action to evict you for rent arrears. They should:

• give you clear information about the rent arrears, your rights and access to money advice
• make reasonable efforts to agree a payment plan with you for the arrears and future rent
• take into account any changes in your circumstances and any steps you have taken to meet a payment plan.

The tribunal will consider if your landlord has followed these steps when it decides if it is reasonable to evict you. Make a note of any steps they have missed.  

For more information about coming to an agreement to pay off your rent arrears, see Paying off your rent arrears.

You've received a written notice from the landlord

The amount of notice you should get will depend on your tenancy type, how long you have been a tenant and the ground being used to evict you. Your tenancy agreement should tell you the notice period you’re entitled to. If you don’t think you’ve had enough notice, you might need advice about challenging it - where to get advice.

Your landlord should provide you with a written notice which should say what notice you are being given. If you don’t leave at the end of the notice period, the landlord has to apply to the tribunal for an eviction/possession order. You can’t legally be made to leave before the tribunal has issued one.

You can choose to leave voluntarily at any point. But you should bear in mind that you might have to keep paying rent until the end of the notice period unless the landlord agrees to your departure date.

What type of notice should you receive

The type of notice you should receive will depend on the tenancy you have:

Paying back what you owe

You might be able to pay off all the arrears before your case goes to the tribunal. If you can do this, it will probably stop legal action going any further and you won’t have to leave your home.

Even if you can’t pay all the arrears off, you might be able to come to an agreement with your landlord to pay back the money over a longer period of time. This would allow you to stay in the property and might mean you can avoid legal action. However, your landlord could still take you to the tribunal even if you come to an agreement. In this case, it is likely you will be allowed to stay in your home as long as you stick to the agreement.

The First-tier Tribunal can also give you time to pay if you apply for this during the proceedings or at the end of the tribunal.

For more about coming to an agreement with your landlord, see Paying off your rent arrears.

Keep paying your rent

Contact your landlord straight away and let them know your situation. If you can, keep paying your rent as normal throughout this process and start making payments towards the arrears. Pay off the amount of money that you can afford. If your landlord won’t accept these payments, put the money aside.

If there are reasons why you can't pay your rent or the arrears, put these in writing to your landlord and keep a copy of your letter or email. For example, you might be waiting for a Universal Credit claim to be dealt with.

You must also inform the Department for Work and Pensions (DWP) or local authority Housing Benefit office about your position, depending on which benefit you're claiming. 

Your landlord refuses rent payments

If your landlord refuses to accept rent payments after they’ve served you with a notice to quit/leave, you must put the rent money aside. This is because you still have a legal duty to pay rent. If you can save the money, put it into a separate bank account. This will help you if your case does go to the tribunal. You can use the money to show that you’re willing and able to pay off the arrears and that it’s not reasonable for the tribunal to evict you.

If an eviction order is granted, you have a legal duty to pay the landlord until you are actually evicted.

The tribunal have sent you a notice about the eviction application

If you don’t pay off the arrears or come to an agreement your landlord will apply for an eviction/possession order from the tribunal.

You should get advice from an expert housing adviser. Your local Citizens Advice Bureau should be able to help, or put you in touch with someone who can - where to get advice.

The tribunal will have sheriff officers deliver a notice to you. It will tell you the date of the hearing or case management discussion. You should check all the information in the tribunal notice, to make sure it's correct. For more information about how to check whether the amount the notice says you owe is correct, see Things to check when you have rent arrears.

If you get a notice from the tribunal, then you can still contact your landlord to see if you can do anything to stop legal action. For example, ask if you can pay off some of the arrears immediately and the rest by instalments the landlord might agree to stop taking legal action against you. You can also remind the landlord that the First-tier Tribunal can give you time to pay if you apply for this during the proceedings or at the end of the tribunal.

If you think that there are good reasons why you shouldn’t be evicted you should reply in writing to the tribunal and these reasons can be taken into account at the hearing or case management discussion but you must get advice about what to say because this could affect the outcome of your case - where to get advice.

Mediation between you and the landlord

The tribunal might suggest you and the landlord take part in mediation. Mediation is never compulsory but can help you to resolve a dispute. There is a cost for mediation which is usually split between both parties. More information about mediators in Scotland can be found on the Scottish Mediation website.

The tribunal calls a case management discussion

The tribunal has the power to make enquiries and can hold a case management discussion prior to a hearing. A final decision can be made at a case management discussion like the tribunal can at a hearing.

If you want to defend the legal action against you for eviction you should attend the case management discussion, if one has been arranged, or the tribunal hearing. If you choose not to attend you will not be able to put your side across.

You should get advice from an expert housing adviser about this. Your local Citizens Advice Bureau should be able to help, or put you in touch with someone who can help - where to get advice.

Getting evidence together

Before the date of the case management discussion or hearing, you should get together all the evidence you’ll need to make your case. For example, you might need to take proof of your financial circumstances like your wage slips and your bank statements. If you are owed money, for example if you are owed Universal Credit or another benefit, you should try and get written confirmation of this so you can show it to the tribunal.

Here are some examples of things you might be able to say to the tribunal

Anything you want to say to help your case should be brought to the tribunal’s attention at the case management discussion or in writing before that. If you bring up any issues for the first time at the tribunal hearing they might not be considered. Some examples are:

• you don't think you owe the money your landlord has said you do. For example, you might think someone else is responsible for the money owed, or your landlord hasn’t worked out the amount you owe correctly
• you are owed Housing Benefit which would pay off all or some of the arrears or you are entitled to Universal Credit and your claim has still to be settled
• the reasons why the arrears have built up. For example, you might have lost your job, or been too ill to work. The tribunal can take these reasons into account when deciding whether to evict you or let you stay in the property. If your circumstances have changed and you can start making payments again, the tribunal may also take this into account
• you would suffer exceptional hardship if you had to leave the property straight away. An example of exceptional hardship is where you're going to be homeless and won’t get rehoused by your local authority. The tribunal might be able to delay your eviction to give you more time to find somewhere else to live
• you want to make your own claim for repairs your landlord should have carried out. You should get advice before doing this.

If you've already made payments towards the arrears, the tribunal will need to see evidence, for example, a receipt. If your landlord has refused to accept these payments, but you’ve put the money aside, take proof of this money to show the tribunal.

You should bring a copy of your financial statement or budget sheet. This is a statement showing how much money you have coming into your household, how much you spend and how much you have left over to pay the arrears.

The First-tier Tribunal can give you time to pay if you apply for this during the proceedings or at the end of the tribunal.

For more information about drawing up a financial statement or budget sheet, you can use a budgeting tool.

The tribunal hearing

It's very important that you go to the case management discussion or tribunal hearing to find out what the tribunal decides and get a chance to affect the outcome.

The First-tier Tribunal can give you time to pay if you apply for this during the proceedings or at the end of the tribunal.

Try to get help and advice before you go to the tribunal.  You should be able to get free advice from a Citizens Advice Bureau - where to get advice. If you are entitled to legal aid, you can get advice from the Scottish Legal Aid Board.

To find out if you can get legal aid, call the Legal Aid Information Line on 0131 240 2082. It is open 7 days a week 7am to 11pm.

If you have a disability

If you have a disability, check whether suitable facilities are available at the tribunal. You can contact the First-tier Tribunal services to find out about access details.

What decisions can the tribunal make

At the case management discussion or tribunal hearing, the members will listen to both sides of the story and look at the evidence brought. The case management discussion or hearing will be a public hearing. This means the decision will be published on the tribunal website and members of the public can attend. 

If you have a special reason for the hearing to be held in private you should write to the tribunal before the hearing, explaining why you are making this request. It will be the tribunal’s decision whether to grant your request.

The First-tier Tribunal can give you time to pay if you apply for this during the proceedings or at the end of the tribunal.

At the end of the hearing, the chairing member will make one of the following decisions to:

• dismiss the case, or
• grant an eviction/possession order to evict you, or
• continue the case to another case management discussion or hearing, for example so that you can provide more evidence to support your case.

If your landlord gets an order to evict you, the order is not enforceable immediately. The order is only issued after the 30 day time limit for making an appeal has passed. Your landlord will then need to start enforcement proceedings which involve giving you a charge to remove you from the property.

Special notice to get help from the local authority

When a private landlord serves you with a notice to repossess the property you live in, it has to also let the local authority know that it is taking this action and that you might end up being homeless. The local authority has specific legal duties to you if you are homeless.

This notice is called a section 11 notice. The local authority might get in touch with you to offer support and advice about housing. It might also get in touch with the lender if you want it to try to work out a solution. If you have not received a section 11 notice and the legal action is progressing get in touch with the local authority's housing department.

Sometimes it’s possible to persuade your landlord not to start enforcement proceedings, for example, because your financial circumstances are going to change or your Universal Credit claim may come through and pay off all the arrears.

For more information about how to deal with your landlord when you have rent arrears, see Paying off your rent arrears.

What happens if I don't attend the tribunal

If you don't go to the case management discussion or tribunal and you aren't represented by someone else the tribunal will make a decision without hearing your side of the story.

You can ask the tribunal to recall the decision but you must do this as soon as possible and you must be able to persuade the tribunal that you have a good reason why you didn't attend the hearing. To get help to do this go to your local Citizens Advice Bureau - where to get advice.

If the case is recalled you must make sure that you attend the tribunal hearing or case management discussion or someone is there to represent you. You can represent yourself but it might be better to have an adviser or a solicitor to state your case.

What happens if my landlord has an eviction/possession order and goes ahead with the eviction

If your landlord has got an eviction/possession order and wants to evict you a notice must be served to tell you that the landlord is going to take possession of the property and evict you. The eviction order is only issued once the 30 day tribunal appeal period has expired. The notice will include the date by which you must leave the property. 

At this stage you can still try to negotiate with your landlord. You can get help from your local Citizens Advice Bureau - where to get advice.

If your landlord refuses to stop the eviction you must move out of the property by the date of the possession otherwise the sheriff officers will evict you. Read more  about the powers of sheriff officers.

If you are going to become homeless you must contact your local authority to find out how they can assist you in finding somewhere else to live. Your landlord should already have got in touch with the local authority. There is more information about homelessness on the Shelter Scotland website.

Preparation for eviction

It might only be a few weeks before you have to leave the property. You should get some advice and support from an experienced adviser to help you to:

• confirm where you are going to be living - the local authority should have been in touch with you already. If it hasn’t been in touch you must get in touch with the housing department if you are going to be homeless because it has a duty to provide you with accommodation
• organise what to do with your possessions - you might have to move to a smaller property but you should try to keep any valuables
• find moderately priced removers or hire a van
• make a list of all the agencies you have to notify about your move - particularly gas, electricity and telephone services who could continue charging, the local authority council tax department and the Post Office redirection service
• organise a new school for your children if necessary and a doctor near to your new home
• contact the sheriff officers to ask for details of the exact date of the eviction if you haven't already been informed.

You can also get help from a Citizens Advice Bureau - where to get advice.

Further help

• Paying off your rent arrears
• Things to check when you have rent arrears
• Help with debt
• Powers of sheriff officers
• Types of private tenancies
• Types of public tenancies