Rent Arrears Policy - Section 13
13. Legal Action
13.1 Legal action is the last stage in the rent arrears process. Tenants will be kept informed of and fully involved in the legal process at all stages of legal action. Legal action may include a payment decree or ejection decree. In all cases, the Council will seek recovery of expenses.Expenses may be awarded where the arrears have been repaid. Where appropriate, the Council will refer the tenant to suitable agencies to provide advice or assist in representation at court hearings.
13.2 The decision to request that an action for recovery of possession of the property and payment of arrears of rent be raised will only be taken when all other means of recovery of rent arrears have been exhausted.
13.3 The Council must serve the tenant with a Notice of Proceedings for Recovery of Possession at least 28 days before court proceedings will commence. Before serving a Notice of Proceedings for Recovery of Possession the Council will make reasonable inquiries to establish, so far as is reasonably practical, whether there are any qualifying occupiers in the house. The Notice of Proceedings for Recovery of Possession must also be served on all qualifying occupiers of the house. A qualifying occupier is a person who occupies the house as his/her only or principal home and who is:
- a member of the tenant’s family aged at least 16; or
- a person to whom the tenant has, with the landlord’s consent, assigned, sublet or otherwise given up possession of the house; or
- a person who is a lodger and the landlord has given consent.
13.4 Tenants in rent arrears will be informed that any qualifying occupiers will be notified of the rent arrears and may at the tenant's discretion be invited to contribute to the financial risk assessment process. Tenants will be encouraged to seek the wider support of family members within their household where this is appropriate. Ultimately however, this will be the tenant's decision.
13.5 Where the court orders the repayment of arrears, it may order an open decree for repayment, which the Council can enforce for full payment of the debt, or it may make an instalment decree requiring the tenant to clear the arrears at an agreed rate.
13.6 In the event that a tenant has made an application for a Debt Payment Programme under the Debt Arrangement Scheme the Council will continue to raise proceedings. However, the Council will not commence "diligence" to enforce the payment of rent arrears.
13.7 Separate and complementary procedures will be developed to guide staff where evictions are approved. Evictions will only be considered as a last resort where all other alternatives have failed.
13.8 The Housing (Scotland) Act 2010 addresses the termination of a tenancy where an order for eviction (decree) has been granted on the grounds of rent arrears. The decree no longer terminates the tenancy at the date on which it becomes effective. Instead, the tenancy will only be terminated when the Council recovers possession. This aims to resolve the uncertainty where a tenant is allowed to remain in a property if suitable payments are being made following the grant of
decree. The Scottish Secure Tenancies (Repossession Orders) (Maximum Period) Order 2012, sets a maximum period of six months for which an eviction decree based on arrears is effective. Decisions in relation to decrees will be made within six months but not more and will comply with the Council’s Evictions Policy.
13.9 Officers will encourage tenants, through personal contact, specific letters and telephone, to contact the Council at the earliest opportunity should they experience a change in their circumstances or face difficulties paying their rent.