Evictions beginning again across Scotland

Evictions beginning again across Scotland

As the majority of Scotland, from the 17th May, moves into Tier 2 under the Coronavirus Regulations, there is much to be rejoicing about. Being able to enjoy a pint in your local pub for one, without having to shield under the cover of a weather shredded canopy. Unfortunately, Scotland in May is not the best weather to be enjoying a pint in a garden. Nor is it the best time to be losing your home, if there ever is a best time. 

For some, however, that is what the ending of Lockdown will mean for them. Not the ending of worry and stress, but just the beginning of it.

We are not yet out this Coronavirus Crisis and although most of the emergency rules that were put in place to protect people and businesses will remain in force until the 30th September, the ones protecting tenants and homeowners from eviction and repossession are not amongst them.

Instead, from the 17th May, any area of Scotland that slips into Tier 2 will also see the ban on evictions also being withdrawn, including Glasgow, which is borderline Tier 3, but is still going into Tier 2, despite the First Minister saying she is concerned. [A last minute decision on Friday, 14th May now means Glasgow will remain in Tier 3 for the next week at least].

What Protections do Tenants have?

There will remain some protections for tenants, however. Landlords will still be required to serve 6-month Notices to Leave (private landlords) and Notice of Intentions to Raise Proceedings (Social Registered Landlords) before they begin any legal action. 

These must be served when your Landlord wants to evict you and take you to the First Tier Tribunal for Scotland (Housing and Property Chamber) (private landlords) or the Sheriff Court (social landlords). These protections will remain in place until the 30th September 2021. Previously landlords only had to give you 28 days’ notice, but these were temporarily extended due to Covid 19 (there are exceptions when your landlord wants to evict you for anti-social behaviour or if you have committed a criminal offence).

However, where your landlord has already served one of these notices on you and the six months has expired, if they now take you to the Tribunal or Court and obtain a Court Order, they will after the 17th May be able to begin eviction proceedings.

Where they have already obtained an Order allowing them to evict you, and your area moves into Tier 2 they may now be able to evict you.

What Protections do Homeowners have?

When a secured lender or mortgage provider wants to repossess your home, they must first serve on you a Calling Up Notice that gives you 2 months’ notice before they can take you to court and request the court provides them with an Order allowing them to repossess your home.

Once they take you to Court, however, and obtain an order, the procedure for removing you from your home is the same as it is for a Tenant.

What is the Procedure for Evicting you or Repossessing your Home?

If a Landlord or Mortgage provider wants to evict you, they must first serve on you a Charge for Removing, served by a Sheriff Officer, ordering you to leave the property. This must give you 14 days’ notice.

If you have still not left the property after those 14 days, the Landlord or Mortgage Provider must then arrange a Sheriff Officer to send to you a Notice of Removal, which must give you at least 48 hours’ notice of the day and time that the Sheriff Officer will attend your home and remove you.

What can you do to Prevent a Repossession or Eviction?

The most important thing you can do is seek advice as soon as you begin experiencing financial difficulties. However, even if you leave it to later, it is never too late to seek advice.

So that means even after a Notice from your Landlord indicating they want to take you to Court or a Notice from your Mortgage Provider telling you that they are calling up your Mortgage.

Ideally, you want advice and representation before your case is heard by the First Tier Tribunal or the Sheriff Court. It is in your best interest to be represented at that hearing. 

However, even if you have done nothing and a court order has been granted against you and a Charge for Removal, and even a Notice of Removal has been served, you may still be able to stop the eviction or repossession right up to the point before the Sheriff Officers remove you from your home.

Minute of Recall

Minutes of Recall are legal remedies that you can use up to the point before you are removed from your home. They can be granted if you were not represented at the Tribunal or Court Hearing, but can be complex, so you should seek advice from a solicitor or your local advice agency as soon as possible.

How Long do Court Order for Eviction and Repossessions Last?

When a Court or Tribunal grants an Order for your eviction or the repossession of your home, it normally has two parts. The first part allows the Landlord or Mortgage Provider to remove you; the other part is the part where they seek money, such as for rent arrears or your mortgage.

Normally, Landlords and Mortgage providers will seek to evict or repossess your home shortly after receiving the court order, using the above procedure.

However, in the case of Tenants, with Social Landlords, the Landlord, when the case involves rent arrears, must use the eviction part within 6 months of getting the Court Order (sometimes the Court can set a shorter period). However, under emergency Coronavirus Laws, they may get longer as the rules governing the eviction ban suspended the running of this 6-month period. This means where the Landlord got an eviction notice one month before the eviction ban, when it ends, he will still have another five months to use it, even though the eviction ban was first introduced in December 2020.

This means many Social Landlords in rent arrears cases, may be able to use Court Orders that, under normal conditions, would have been too old. 

 

Eviction Ban: How to use it to your Benefit

Eviction Ban: How to use it to your Benefit

The Scottish Government’s decision to extend its eviction and repossession ban has thrown a lifeline to many Scots and their families.

However, although the Scottish Government has said they have an option of extending the ban beyond the 31st March 2021, people should not assume they will and should use this time to take steps to help themselves.

In this post we look at what tenants and homeowners can do to help themselves. 

Episode Two: The Scottish Tenancy Hardship Loan Fund

Get Advice

The most important thing you can do if you have mortgage or rent or mortgage arrears is get advice.

The second most important thing you can do is speak to your Landlord or Mortgage providers. They may be able to help you.

In terms of Landlords, it is in their interest to help you. Currently the law states that if they want to evict you, they must first give you six month notice before they even initiate legal action. Even if they have done that and obtained an order to evict you, the eviction ban means they currently cannot remove you from the property. The most effective way for them to get their money, therefore, is to work with you.

Also, Mortgage Providers have been told by they UK Financial Regulator, the Financial Conduct Authority, that they must work with home owners and where it is required give them support.

If you don’t feel able to do this or you need help claiming benefits, then contacting your local advice agency is important as they can assist you.

Maximise your Income

If you have been affected by the Covid 19 Crisis fiancially, then you may be entitled to financial assistance from the UK Government.

This may come in the form of the UK Furlough Scheme (speak to your employer) or the Self-Employed Income Support Scheme 

Also you may be entitled to additional social security benefits such as Universal Credit and help with your housing costs.

Unfortunately, you cannot get help with your mortgage through Universal Credit, but there is some support in the form of a secured loan available through the UK Government’s Support for Mortgage Interest Scheme (although you do need to wait 39 weeks before that support becomes available).

The most important thing you can, therefore, is look at how you can maximise your income. 

One way of doing this, is by completing a full benefit check for yourself.

Discretionary Housing Payment

If you are a tenant and you are having difficulty paying your rent, you may be entitled to a Discretionary Housing Payment.

A Discretionary Housing Payment is a payment that your Local Authority can pay to you or your Landlord to help you with your rent.

These payments can be in addition to other payments to help you with your housing costs, such as through Universal Credit.

They cannot be use to pay rent arrears, however, where you cannot pay your full rent because Universal Credit won’t cover the full cost, or you have been affected by the Benefit Cap, or your income has dropped, DHPs can be awarded to make up the difference.

They can also be backdated, so they may reduce your rent arrears.

If you are interested in applying for a Discretionary Housing Payment, you should contact your Local Authority.

What is Changing with the Debt Arrangement Scheme

Scottish Welfare Fund

All of Scotland’s Local Authorities can provide people with non-repayable grants through the Scottish Welfare Fund.

The types of grants that are available are Crisis Grants and Community Care Grants.

Non of these can be awarded to help pay rent or mortgage costs, however, they can be provided for other reasons if you are struggling financially and this may help you with other costs.

Crisis Grants can be paid to help you with your day to day living costs if you are experiencing any financial hardship and are intended to pay for essential living costs such as food and ensuring you home is heated.

Community Care Grants can be paid to cover the cost of larger items that need replaced, and are essential, such as beds, flooring, curtains and cookers.

If you want to apply to the Scottish Welfare Fund, you should contact your local authority.

rent arrears

Tenancy Support Hardship Fund

The Tenancy Support Hardship Fund should be the last option you should explore if you have rent arrears.

This is because it means borrowing from the Scottish Government a loan to pay your rent arrears, that you then must repay.

However, the Loan is interest free and does not need to be repaid immediately. Once you have borrowed from it, you don’t need to make any payments for the six months.

After that you have up to five years to repay the loan.

In addition to that if you are financially struggling to repay the loan, you cannot be evicted, unlike if you don’t repay your rent.

The Tenancy Support Hardship Fund can only cover rent arrears that have been accrued since the 1st of January 2020.

If you want to apply to the Tenancy Support Hardship Fund, you do online via a Scottish Government Webpage.

Once the sequestration is awarded by the Accountant in Bankruptcy, or by the Court (where a creditor makes you bankrupt), the Trustee notifies the creditor and the wage arrestment should cease.

Rent Arrears

Dealing with Rent Arrears

If you are experiencing difficulty with your rent arrears, our page on Rent Arrears and how to deal with them will provide you with more information.

Dealing with Mortgage Arrears

Our page on Mortgage Arrears also explains the process that mortgage providers must use when you get into mortgage arrears and tell you what your rights are. For more information, click below.

New Protection for Tenants of Social Landlords

New Protection for Tenants of Social Landlords

New legislation introduced today by the Housing (Scotland) Act 2010 should help stamp out bad practice by many social landlords and bring to an end the draconian practice used by many of holding decrees like Swords of Damocles over the heads of tenants.

S153 and 155 of the 2010 Act, which amend the Housing (Scotland) Act 2001, should also make it more difficult for social landlords to evict tenants for rent arrears.

Section 153 introduces a new section 16(5A) and (5B) into the 2001 Act, which will mean that where court orders are now granted in relation to Scottish Secure Tenancies on grounds that include rent arrears, the date specified in the order for recovery will no longer be the date the tenancy ends. Instead tenancies will now cease on the date that recovery is made, ensuring technical evictions will no longer be required where agreements are reached and no new tenancy agreements will need to be signed.

The new amendments also require the courts to specify a maximum period within which the landlord must use the court order, which cannot exceed 6 month.

Section 155 does for Scottish Secure Tenants what the Home Owner and Debtor Protection (Scotland) Act 2010 done for home owners. It introduces new obligations in the form of Pre-Action Requirements (PARs) on Councils and Housing Associations which they must comply with before they can serve a notice of intention to raise proceedings. These PARs will only apply in rent arrear cases and landlords will be expected to comply with Scottish Government Guidance (http://www.scotland.gov.uk/Resource/0039/00395195.pdf).

The PARs are very similar to those for homeowners in that they place heavy emphasis on tenants being provided clear information, directed towards advice and where they are attempting to seek agreements for reasonable efforts to be made by landlords to enter agreements. Landlords are also encouraged not to initiate legal action where applications are being made for housing benefit and to provide tenants with assistance in making such applications.

One of the most interesting topics in the Guidance relates to sequestrations, where landlords are encouraged to consider where it is appropriate for them to raise actions for eviction where tenants have become bankrupt. Although sequestration in itself does not stop eviction, the point is made that raising actions for eviction may be construed as an attempt to obtain unfair preference and arguably should be avoided.

The Scottish Federation of Housing Associations have claimed the new laws are unnecessary and will not result in less evictions, but this ignores the point that when the credit crunch began the political focus was on preventing home owners losing their homes, despite the fact a tenant was twice as likely to have a decree made against him/her. Traditionally, the plight of tenants has been neglected and the fact these provisions took over 18 months to be introduced when the equivalent for home owners came into force in 2010 emphasises that point. There may not be fewer evictions, but the purpose of the provisions is also to improve practices in dealing with rent arrears.

Where the practices of social landlord are as unimpeachable as they claim, they will have nothing to worry about, but where they are not the Sword of Damocles that some of them held over the heads of their tenants for years, may now drop on them.