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Eviction for criminal convictions – Is it really mandatory?

Eviction for criminal convictions – Is it really mandatory?

On 1 May 2019, the Housing (Scotland) Act 2001 was amended to provide Registered Social Landlords (RSLs) with a mandatory ground of eviction in certain circumstances where a tenant is convicted of a crime. 

Section 16 (2)(aa) of the 2001 Act establishes a two part test for RSLs to have a mandatory ground for eviction:

  • That a tenant, joint tenant, subtenant, or a person residing, lodging or visiting the property, is convicted of an offence punishable by imprisonment committed in, or in the locality of, the property
  • A Notice of Proceedings is served within one year of the date of that conviction

If these conditions are satisfied, the legislation states that there is no requirement for the court to consider whether it is reasonable in the circumstances to grant the eviction.

However, this has not always been as straightforward in court.  Our first-hand experience thus far is that there can be a reluctance from the court in granting such orders.

We are finding more and more of these ‘streamlined eviction’ cases are challenged. Defences tend to come in three forms:

  1. The Scottish Secure Tenancy Agreement requires that “reasonableness” is considered

This is a technical legal argument that has been advanced in several cases. We are awaiting the outcome of a ‘test case’ in relation to this defence. Unfortunately these cases continue to be delayed owing to the ongoing pandemic restrictions.

  1. Proportionality of eviction – the Human Rights Argument

While the legislation removes the need to consider reasonableness, the court still has to consider whether an eviction is a proportionate means to achieve a legitimate aim. The court must look at the facts and circumstances of the particular case. Defenders’ agents seek to replace the reasonableness test with proportionality.

  1. Lack of consideration of Scottish Government Guidance

Government Guidance issued alongside the 2001 Act must be considered before any RSL raises proceedings under this streamlined eviction process. The Guidance outlines various factors an RSL must consider before raising proceedings, such as:

  • the nature and seriousness of the offence
  • whether the offence has any impact on neighbours and the community
  • any other steps which could be taken by the landlord to address the anti-social or criminal behaviour

The Guidance also states that RSLs need to communicate clearly their intention to raise an action to tenants, how long it might take and where they can seek advice or assistance.

A recent court action emphasised the need for RSLs to take full consideration of the Guidance before raising an action. Ground 2 Eviction - Significant Decision

We are aware that not all evictions raised on this ground will succeed despite the apparent mandatory nature of the ground. RSLs should not simply raise proceedings for eviction based on their own policy without ensuring that the policy takes the guidance into consideration and proportionality.

We recommend speaking to a member of our experienced team before raising an action on this ground.

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Written by : Mark Oswald