Registered Social Landlords (RSLs) are entitled to terminate a Scottish Secure Tenancy and recover the property where a tenant (or someone residing with or visiting them) has been convicted of a criminal offence. Provision for this is made in Ground 2 of Schedule 2 of the Housing (Scotland) Act 2001. What changes are coming into force regarding evicting criminal tenants in 2019?
There are currently two conditions which must be met before an RSL is entitled to serve a Notice of Proceedings and begin eviction proceedings using Ground 2:
- The offence committed is punishable by imprisonment or relates to using the property for illegal or immoral purposes
- The offence itself has taken place in the locality of the property
It is not necessary that the criminal sentence imposed is a custodial one (involving time spent in jail). All that matters is that imprisonment was an option available to the court when the sentence was delivered.
As matters stand, the sheriff court will only evict a tenant on the basis of Ground 2 where it is satisfied that it is reasonable in all the circumstances to do so. Some factors taken into account may be:
- the severity of the sentence imposed
- the nature of the conviction
- whether it was the tenant who was convicted or a third party
- whether the tenant was aware of the criminal activity
- the time which has passed since conviction
However, there will soon be an additional condition imposed on RSLs to enable Ground 2 to be relied on.
On 1 May 2019, section 14 of the Housing (Scotland) Act 2014 will come into force (yes - after 5 years!) which will add a time limit to the use of Ground 2. The changes in the new legislation state that any Notice of Proceedings relying on Ground 2 will need to be served within the 12-month period after the date of conviction (or date of disposal of an appeal, if one has been made).
As part of the changes, the sheriff court will no longer need to be satisfied that eviction on this basis is reasonable. This means that sheriffs will no longer be able to exercise their discretion where Ground 2 is being relied on. Theoretically, although there will be a time restriction, it should become easier for RSLs to evict criminal tenants (or tenants who reside with criminals).
The Scottish Government will be issuing guidance as a control measure, and that guidance must be regarded, in terms of the legislation, before a decision is taken to raise Ground 2 proceedings.
The tenant retains the right to appeal any eviction decree granted against them, and we expect to see challenges on human rights or Equality Act grounds.
If you would like any advice in relation to the Housing (Scotland) Act 2014, please contact our experienced social housing team.