The first step that should be taken when you are behind with your rent due to the coronavirus, or if you think that you may fall behind, is to negotiate with your landlord. Be open, explain the situation honestly and try to work out a way forward. Options raised could include:
- Paying any arrears through an affordable repayment plan – work out what you can afford to pay extra each month and the duration of time that would be required to clear any arrears.
- Token payments for what you can afford each month/week - with a view to increasing this amount once your financial situation becomes steadier.
If the landlord is unwilling to negotiate or is taking steps towards the eviction process, then there are additional things to bear in mind.
The processes that a landlord needs to take in order to evict you as a tenant vary depending on the type of tenancy that you have.
If you rent from the council, a housing association or housing co-operative, your tenancy type will more-than-likely be a secure tenancy.
For those renting under secure tenancy, pre-action protocol must have been followed by the landlord for further action to take place.
Check that your landlord has followed the correct procedure.
Has your landlord…
• Provided you with clear information about the tenancy agreement, unpaid rent or other financial obligations?
• Made reasonable efforts to give help and advice on eligibility for housing benefit / other types of financial assistance?
• Provided information about sources of help and advice with the management of debt?
• Made reasonable efforts to agree a reasonable plan for future payments with you?
• Considered the likely result of any application for housing benefit that has not yet been decided?
• Considered other steps you are taking which are likely to result in payment within a reasonable time?
• Considered whether you are complying with the terms of an agreed plan for future payments?
• Encouraged you to contact your local authority (where the local authority is not the landlord)?
Non-payment of rent or breaking of a tenancy agreement is the first ground for eviction for those living in council housing.
This is a shorter-term agreement (minimum 6 months), usually when the tenant rents from a private landlord or letting agency. This gives the landlord greater rights of termination or eviction
If you have a short-assured tenancy, then you should have been issued with an AT5 notice, stating that the tenancy is for less than 6 months.
The landlord can only evict a short-assured tenant before the end of the tenancy if they have good reason or grounds to do so. This is again related to the grounds for eviction:
Ground 1 - ‘Rent arrears or breaking of the tenancy agreement’.
At the end of the short-assured tenancy the landlord can ask for a court order for eviction without having to give a specific reason why. Any end date should have been clearly communicated in the instance of short-assured tenancies.
Private Residential Tenancy
This is the ‘newer’ of the agreement types, providing more security and stability to tenants and additional safeguards for landlords, lenders and investors. Private Residential Tenancy replaced Secure and Assured Short Tenancy for agreements taken out after 1st Dec 2017.
Under a Private Residential Tenancy, a landlord can evict a tenant for non-payment of rent if notice of 28 days is provided, regardless of grounds. In relation to private residential tenancies, this falls under Ground 12 of the grounds for eviction.
If negotiation with the landlord is not an option (and the landlord has followed the correct steps in the eviction process) then you should contact Shelter for more specialist advice, information on rent, evictions and your rights as a tenant.
You can contact Shelter (Scotland) by visiting www.scotland.shelter.org.uk or by calling 0808 800 4444 weekdays from 9am until 5pm free from UK landlines and main mobile networks. *We cannot guarantee the operating hours or availability of other organisations during this period.
If you are threatened with imminent eviction, or it is outside of Shelter’s opening hours, you should contact the relevant Homelessness Department within your local authority, who will usually have an emergency number. Check your local authority’s website for further details.
Step 1 – Negotiate with the landlord
Step 2 – Understand your rights in terms of grounds for eviction and ‘pre-action protocols’
Step 3 – If eviction is imminent, contact Shelter or your local authority's Homelessness Department.
When a homeowner has arrears on their mortgage, the lender will usually want these to be cleared. If these arrears are not cleared, then the mortgage lender may initiate the process for repossession of the property to sell it in order to recoup their investment.
Many lenders are sympathetic in circumstances where there has been a loss of income due to factors out-with the control of the homeowner. Most financial institutions realise that it is better to negotiate with those who have fallen behind in order to get things back on track.
Communicate and negotiate with the lender
The first step is to communicate and negotiate with the lender. By discussing your issue with them frankly, particularly if you have been impacted by the repercussions of the coronavirus, you may be able to come to a reasonable agreement.
If the situation has gone beyond this, lenders are required to demonstrate that they have made reasonable efforts to deal with the arrears without resorting to using the courts to enforce repossession of the property. This includes –
- Providing clear information about the arrears
- Taking reasonable effort to agree a repayment proposal with the homeowner
- Allowing enough time to pay off the arrears before going down the route of repossession
- Providing information about sources of further information and advice
- Communicate and negotiate again
If an existing arrangement has been made to pay outstanding mortgage arrears, and this has broken down, don’t bury your head in the sand. You can still negotiate further with the lender. There may still be time to come up with an amicable solution for both parties.
If the lender takes you to court
Remember that going to court does not necessarily mean that you will lose your home. You should ensure that your lender has communicated with you effectively and taken reasonable steps to resolve the issues before going to court.
If the issue reaches this stage, and the lender is taking you to court, then you should try to obtain legal advice from a solicitor qualified to represent you.
You can search for specialist legal advice on the Law Society of Scotland website by visiting https://www.lawscot.org.uk/find-a-solicitor/.
Step 1 – Negotiate with the mortgage lender to check what can be done to get back on track.
Step 2 – Understand your rights and the lender’s responsibilities in helping you to get back on track.
Step 3 – Negotiate with the lender again if you need to. Remember that there may still be a way forward if you have failed to stick to a payment plan before.
Step 4 – Seek specialist legal advice if the lender intends to take you to court