18 March 2021

The eviction ban in Scotland: What is it and what does it mean for tenants?

Since December 2020 there have been limitations on evictions in Scotland, often termed an eviction ban. However, the position is more complicated than a straightforward ban on evictions.

The eviction ban came into effect on 11 December 2020, as a result of the Health Protection (Coronavirus) (Protection from Eviction) (Scotland) Regulations 2020. These Regulations prevented a charge for removing from being served (being the document that needs to be served prior to an eviction order being enforced) and prevent a decree being enforced (this includes orders from the Tribunal for eviction). This effectively meant that from 11 December 2020 there was a limitation on being able to enforce an order for eviction. This did not impact upon decrees and orders for eviction being granted either by the sheriff court or the Housing and Property Chamber of the First-tier Tribunal: it simply meant that the property that the decree or order concerned could not, on a practical level, be recovered by the landlord.

It is important to note that the eviction ban does not apply to all evictions. If the decree or order is granted wholly or partly on the basis of certain grounds (essentially being anti-social behaviour and criminal conviction grounds), the order may still be enforced. The grounds that the eviction ban does not apply to are the following grounds:

(a) Case 2 (nuisance, annoyance or conviction for using or allowing the dwelling-house to be used for immoral or illegal purposes) in schedule 2 of the Rent (Scotland) Act 1984,

(b) Ground 15 (conviction for certain offences, acting in an anti-social manner or pursuing a course of anti-social conduct) in schedule 5 of the Housing (Scotland) Act 1988,

(c) Paragraph 2 (conviction for certain offences), 7 (anti-social behaviour or harassment) or 8 (nuisance, annoyance or harassment) of schedule 2 of the Housing (Scotland) Act 2001, or

(d) Paragraph 13 (criminal behaviour), 14 (anti-social behaviour) or 15 (association with person who has relevant conviction or engaged in relevant anti-social behaviour) in schedule 3 of the Private Housing (Tenancies) (Scotland) Act 2016.

As such, if the decree or order is granted on in wholly or partly on one of the grounds above then the eviction ban does not apply to it, and the decree or order.

These Regulations were set to expire on 22 January 2021. Clearly in the run up to this deadline, with the country still in full lockdown with little end in sight, there was an appetite to continue the eviction ban. Losing your home is devastating at any time, but in the middle of a pandemic seems unthinkable.

As such the Scottish Government continued the eviction ban through the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Amendment (No. 12) Regulations 2021. Regulation 14 of these revoked the expiry of the eviction ban, and Regulations 5 and 6 incorporated the eviction ban into the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 (which will be referred to as the Local Levels Regulations below). As anyone who has been following the complex web of coronavirus legislation will know, these Regulations are the ones that set out the tier restrictions, and are the main source of the restrictions on all of our day to day lives. These Regulations are in force until 30 September 2021.

Regulation 5 relates to Tier 3, and Regulation 6 relates to Tier 4. Both copy the terms of the previous eviction ban, and mean that unless the eviction is based wholly or partly on the anti-social or criminal conviction grounds, a decree or order for eviction cannot be enforced. Regulation 5 creates Regulation 9A in Schedule 4 to the Local Levels Regulations, and Regulation 6 creates Regulation 10A in Schedule 5 to the Local Levels Regulations. The only end date on the Local Levels Regulations at the moment is 30 September 2021.

However, this does not mean that no one can be evicted on a non-criminal conviction/anti-social ground until after 30 September 2021. Firstly, if an area is moved down to Tier 2 there is no equivalent Regulation in the Schedules of the Local Levels Regulations for Tier 0, 1 or 2. Secondly, if in the future the Scottish Government no longer considers that an eviction ban is necessary it would be perfectly possible for further Regulations to be made to amend the Local Levels Regulations, to the effect that the ban on eviction could be removed. Without Regulation 9A in Schedule 4 and Regulation 10A in Schedule 5 there will be nothing (other than the normal rights to recall, appeal or suspension of court decrees or tribunal orders) to prevent an eviction decree or order from being enforced.

As such, given that this legal position does not prevent decrees or orders from being granted, and it is unlikely that they will exist forever (whether in the Local Levels Regulations or in another form) it would be fairer to call the eviction ban a pause on most (though not all) evictions.

We would encourage anyone who receives notices from their landlord indicating that they might be at risk of eviction to seek advice as early as possible. Housing law has always been a complex area of law to navigate, and never more so that during the pandemic with the changes to the law and the added complexity of remote hearings. We provide telephone advice appointments and representation at Glasgow and Greenock Sheriff Courts and at the Housing and Property Chamber for people resident in the Glasgow and Inverclyde areas. Please call 0141 353 3354 to make an appointment or a referral.

Rona Macleod