Schedule 2—Protection against eviction
Eviction from residential properties: restrictions on enforcement
66.In paragraph 1 of schedule 2, sub-paragraphs (1) and (2) impose restrictions on the enforcement of certain orders granted by a court or tribunal. These orders would, without these enforcement restrictions, have allowed a landlord to take steps to enforce the removal of a residential tenant from the landlord’s property. (In the following notes, such an order is referred to as an “
67.Sub-paragraph (3) imposes limits on the duration of these enforcement restrictions. When the restrictions apply to an eviction order, the landlord cannot take further steps to enforce the order for 6 months starting from when it was granted or, if sooner, until the restrictions end. The 6-month maximum period of restrictions on the enforcement of an order cannot be extended.
68.Despite these enforcement restrictions, a landlord may still take steps to apply for and obtain an eviction order as previously. But, as with any other eviction order, if the enforcement restrictions apply to the order then it cannot be enforced for 6 months starting from when it was granted or, if sooner, until the restrictions end.
69.There are different kinds of eviction order although they broadly do the same thing - they enable a landlord to take steps to remove a tenant from the landlord’s property. In paragraph 1, an order of this kind is referred to as a “
70.There are also different kinds of residential tenancy, with each kind governed by a different regime (whether statutory or common law). The main statutory regimes are—
the 2016 Act for private residential tenancies,
the 2001 Act for Scottish secure tenancies and short Scottish secure tenancies,
the 1988 Act for assured tenancies (including short assured tenancies), and
the 1984 Act for, among other things, protected tenancies (including short tenancies) and statutory tenancies.
71.Most student residential tenancies are governed instead by the common (non-statutory) law of contract.
72.Any eviction order granted by a court or tribunal to remove a residential tenant from a property that is subject to any one of the above tenancies could potentially be affected by the enforcement restrictions. Whether the order is subject to these restrictions depends, in part, on when proceedings for the order were raised with the court or tribunal (i.e. when the landlord first submitted an application to the court or tribunal for the order)—
If the proceedings for an eviction order start after the restrictions come into force, the restrictions could apply to the order. If the landlord was required to give the tenant an “
eviction notice ” (see definition in sub-paragraph (10)) before doing so, it makes no difference when the notice was given (including whether it was given before or after details of the enforcement restrictions to be delivered by the Act were first made public on 6 September 2022, or before or after the enforcement restrictions come into force).If the proceedings for an eviction order started before the restrictions come into force and an eviction notice had to be given to the tenant before doing so, the restrictions could apply to the order (regardless of when the order is or was granted) but only if the notice was given on or after 6 September 2022.
If the proceedings for an eviction order started before the restrictions come into force and an eviction notice did not need to be given to the tenant before doing so, the restrictions could apply to the order (regardless of when the order is or was granted) but only if the proceedings started on or after 6 September 2022.
If the proceedings for an eviction order started before 6 September 2022, the restrictions do not apply to the order (regardless of when the order is or was granted). Accordingly, any such eviction order may be obtained and enforced as previously.
73.Whilst the enforcement restrictions could apply to any eviction order that meets the criteria in sub-paragraph (1) or (2), they do not apply in a case mentioned in sub-paragraph (4) or (5)—
Sub-paragraph (4) provides that where an eviction order relates to a student residential tenancy, the enforcement restrictions do not apply if the order is or was granted in respect of circumstances which are the same as those described in paragraph 2 (the tenant received a relevant conviction) or paragraph 3 (the tenant behaved in an anti-social manner) of schedule 2 of the Act. Paragraphs 2 and 3 are explained below.
Sub-paragraph (5)(a) provides that where an eviction order relates to a private residential tenancy under the 2016 Act, the enforcement restrictions do not apply if the order is or was granted on the basis of the application of paragraph 1A, 2, 4A, 8, 10, 12A, 13, 14 or 15 of schedule 3 of that Act. These paragraphs set out various circumstances in which an eviction order may be granted in relation to this kind of tenancy. (The 2016 Act is modified by paragraph 4 - as noted below - to insert paragraphs 1A, 4A and 12A.)
Sub-paragraph (5)(b) provides that where an eviction order relates to a Scottish secure tenancy or a short Scottish secure tenancy under the 2001 Act, the enforcement restrictions do not apply if the order is or was granted on the basis of the application of paragraph 1, 2, 5, 7, 8, 10 or 14 of schedule 2 of that Act. These paragraphs set out various circumstances in which an eviction order may be granted in relation to these kinds of tenancy. These are all existing grounds. But the reference to paragraph 1 (which relates, in part, to rent arrears) is qualified. The effect is that the enforcement restrictions do not apply to an order granted on the ground of rent arrears only if the amount is equal to or greater than £2,250. If the rent arrears are below that amount, an eviction order granted on that ground (and which is subject to the enforcement restrictions) cannot be enforced for 6 months from when the order was granted (or, if sooner, until the enforcement restrictions are brought to an end).
Sub-paragraph (5)(c) provides that where an eviction order relates to an assured tenancy (including a short assured tenancy) under the 1988 Act, the enforcement restrictions do not apply if the order is or was granted on the basis of the application of Ground 1A, 2, 8A, 15 or 17 of schedule 5 of the 1988 Act. These are Grounds on which an eviction order may be granted in relation to this kind of tenancy. (The 1988 Act is modified by paragraph 5 - as noted below - to insert Grounds 1A and 8A.)
Sub-paragraph (5)(d) provides that where an eviction order relates to a protected tenancy (including a short tenancy) or a statutory tenancy under the 1984 Act, the enforcement restrictions do not apply if the order is or was granted on the basis of the application of Case 1A, 2, 7 or 8A, paragraph (c)(vi) in Case 11 or paragraph (c)(iv) in Case 12 of schedule 2 of the 1984 Act. These are Cases where an eviction order can be granted in relation to these kinds of tenancy. (The 1984 Act is modified by paragraph 6 - as noted below - to insert Cases 1A and 8A.)
74.Sub-paragraph (6) provides that where an eviction order is subject to the enforcement restrictions, and was granted under section 51 of the 2016 Act or section 16 or 36 of the 2001 Act after the enforcement restrictions came into force, the order does not bring the tenancy to an end until the landlord has recovered possession of the property through the enforcement of the order (at any time after the restrictions on the enforcement of the order have come to an end). This ensures that the landlord does not end up in a situation where a tenancy comes to an end at a time when an eviction order cannot be enforced against the tenant.
75.Sub-paragraph (7) ensures that any period when an eviction order mentioned in section 16(5A)(c) of the 2001 Act is subject to enforcement restrictions under paragraph 1(1) or (2) is disregarded when calculating the period for which the landlord has a right under the order to recover possession of the property in question. In other words, the period when the landlord has those rights is paused whenever the enforcement restrictions apply to the order.
76.Sub-paragraph (8) confers a power on the Scottish Ministers to modify, by regulations, the circumstances in which the enforcement restrictions in paragraph 1 of schedule 2 do not apply. Sub-paragraph (9) provides that these regulations are subject to the affirmative procedure.
Student residential tenancies: criminal behaviour
77.As noted above, the enforcement restrictions that are imposed by paragraph 1(1) and (2) of schedule 2 do not apply in relation to a student residential tenancy where the eviction order is or was granted in respect of the circumstances set out in paragraph 2 of the schedule. This is where a tenant receives a relevant conviction for an offence that was committed by using, or allowing the use of, the let property for an immoral or illegal purpose, or an offence that is punishable by imprisonment and committed within, or in the locality of, the let property.
Student residential tenancies: anti-social behaviour
78.As noted above, the enforcement restrictions that are imposed by paragraph 1(1) and (2) of schedule 2 do not apply in the case of a student residential tenancy where the eviction order is granted in respect of the circumstances set out in paragraph 3 of the schedule. This includes circumstances relating to anti-social behaviour of the tenant within, or in the locality of, the property.
Safeguards for landlords: substantial rent arrears and financial hardship
79.Paragraphs 4 to 6 of schedule 2 set out some additional grounds on which an eviction order may be granted, with effect from the date on which the enforcement restrictions in paragraph 1(1) and (2) of the schedule come into force. Where an eviction order is granted on one of these additional grounds, the enforcement restrictions do not apply and the order can be enforced in the usual way. Whether and how these apply depends on the type of tenancy in question—
In relation to private residential tenancies, paragraph 4 modifies the 2016 Act to insert new paragraphs 1A, 4A and 12A into schedule 3 of the 2016 Act. The new grounds are: the landlord’s intention to sell the property to alleviate financial hardship, the landlord’s intention to live in the property to alleviate financial hardship, and circumstances where the tenant has accrued substantial rent arrears.
In relation to an assured tenancy (including a short assured tenancy), paragraph 5 modifies the 1988 Act to insert new paragraphs 1A and 8A into schedule 5 of the 1988 Act. The new grounds are: the landlord’s intention to live in the property to alleviate financial hardship, and circumstances where the tenant has accrued substantial rent arrears.
In relation to a protected tenancy (including a short tenancy) and a statutory tenancy, paragraph 6 modifies the 1984 Act to insert new paragraphs 1A and 8A into schedule 2 of the 1984 Act. The new grounds are: the landlord’s intention to live in the property to alleviate financial hardship, and circumstances where the tenant has accrued substantial rent arrears.
80.The new grounds of “substantial rent arrears” apply if the tenant has accrued rent arrears in respect of one or more periods, and the cumulative amount equates to, or exceeds, an amount that is the equivalent of 6 months’ rent under the tenancy. But a court or tribunal must also be satisfied that it is reasonable to grant an eviction order on this ground, taking into account, among other things, whether the rent arrears are due to a delay or failure in the payment of certain benefits.
81.In addition, paragraph 5(3) of schedule 2 modifies section 19(4) of the 1988 Act so that the minimum period to be specified in an eviction notice under that section is two months if the notice specifies either of the new Grounds (1A or 8A) that are inserted into the 1988 Act by the paragraph.
Unlawful eviction: notification and determination of damages etc.
82.Paragraphs 7 and 8 of schedule 2 make provision for the determination of damages where a tenant has been unlawfully evicted. This applies to unlawful evictions taking place on or after the commencement of the Act. Such a determination may be for an amount that is not less than 3 months’ rent and not more than 36 months’ rent but which may be reduced to an amount of less than 3 months’ rent if the court or First-tier Tribunal considers that to be appropriate. The provisions also place a requirement on the First-tier Tribunal to inform the police and local authorities when an order is made. In the case of a social landlord, the sheriff court is required to inform the Scottish Housing Regulator when an order is made.
