The Cost of Living (Tenant Protection) (Scotland) Act 2022 temporarily imposes:
The eviction moratorium
There is a limited ban on the enforcement of evictions in Scotland. Landlords may still issue a valid eviction notice to a tenant on any applicable ground and obtain an order from the Sheriff Court or First-tier Tribunal during the moratorium.
The eviction ban has been extended until at least 30 September 2023. [1] Scottish ministers may decide to extend the ban by a further 6 months.
When restrictions apply to an eviction order, it cannot be enforced until 6 months after the order was granted, or until 30 September 2023, whichever date is sooner. [2]
There are some existing grounds that are not subject to the ban, and some new temporary grounds have been introduced. For evictions sought under those grounds, sheriff officers can enforce eviction orders.
The ban applies to clients who rent from:
- a private landlord or letting agency
- the council or a housing association
- college or university halls or purpose built student accommodation
Where eviction proceedings had already started, it is important to work out a timetable of events with the client. The ban does not apply if an eviction order is granted in any of the following circumstances:
- the landlord had an eviction application accepted by the court/tribunal before 6 September 2022
- the landlord had served notice to the tenant before 6 September 2022 and applied to the tribunal before 28 October 2022
The court or tribunal will include the date on which they accepted the landlord’s application in the paperwork served to the client.
The eviction enforcement ban does not apply to:
- non-tenant occupiers
- other common law tenancies, such as where a client lives with their landlord
Grounds to which the eviction enforcement ban does not apply
The eviction enforcement ban will not apply to certain grounds. The Act has also introduced temporary grounds for eviction that can be enforced while the restrictions are in place.
In any case, reasonableness must still be considered. For example, the court or tribunal must take into account whether any arrears are caused by delays to the payment of certain benefits. We have guidance on considering reasonableness in rent arrears cases.
Private residential tenancies
The following grounds are not affected by the ban on eviction enforcement:
- Ground 1A: Landlord intends to sell due to significant financial strain (a new temporary ground)
- Ground 2: Property to be sold by lender
- Ground 4A: Landlord intends to live in the property to avoid their own homelessness (a new temporary ground)
- Ground 8: Not an employee
- Ground 10: Tenant not occupying let property
- Ground 12A: Rent arrears amount to 6 months or more worth of rent (a new temporary ground)
- Ground 13: Criminal activity
- Ground 14: Anti-social activity
- Ground 15: Association with person who has relevant conviction or engaged in relevant anti-social behaviour [3]
Scottish secure and short Scottish secure tenancies
The following grounds are not affected by the ban on eviction enforcement:
- Ground 1: Rent arrears of £2250 or more (modified by the act)
- Ground 2: Using the house for illegal or immoral purposes or other criminal offences
- Ground 5: The tenant is absent from the property
- Ground 7: Anti-social behaviour or conduct amounting to harassment
- Ground 8: Nuisance, annoyance or conduct amounting to harassment
- Ground 10: Demolition of, or substantial work on, the property
- Ground 14: Islands council as education authority [4]
Assured tenancies
The following grounds are not affected by the ban on eviction enforcement:
- Ground 1A: Intent to live in house to alleviate financial hardship (a new temporary ground)
- Ground 2: House to be sold by lender
- Ground 8A: Substantial rent arrears of 6 months rent or more (a new temporary ground)
- Ground 15: Conviction for certain offences, acting in an anti-social manner or pursuing a course of anti-social conduct
- Ground 17: Employment with landlord ceases [5]
Tenancies under the Rent (Scotland) Act 1984, including regulated tenancies
The following cases are not affected by the ban on eviction enforcement:
- Case 1A: Substantial rent arrears of 6 months rent or more (a new temporary ground)
- Case 2: Nuisance, annoyance or conviction for using or allowing dwelling-house to be used for immoral or illegal purposes
- Case 7: Employment with landlord ceases
- Case 8A: Intent to live in the house to alleviate financial hardship (a new temporary ground)
- Case 11: Owner-occupier’s house to be sold by lender
- Case 12: Owner’s house to be sold by lender [6]
Common law tenancies in student accommodation
The following reasons for eviction are not affected by the ban on enforcement:
- antisocial behaviour
- criminal behaviour [7]
For any other eviction ground in private and social tenancies, the moratorium will apply.
Social and private landlords must still meet pre-action requirements before starting eviction action on the basis of arrears.
Check our guidance on:
Where a client needs to defend an eviction case either at the Sheriff Court or the First-tier Tribunal, they should be referred to a specialist housing solicitor for representation.
Increased damages for unlawful eviction
The Cost of Living (Tenant Protection) (Scotland) Act 2022 temporarily increases the Sheriff Court and First-tier Tribunal’s powers to set a new minimum and maximum rate of financial compensation for unlawful eviction. Where a tenant is illegally evicted during the lifespan of the Act, the court or tribunal may award a minimum of 3 months’ worth of rent and a maximum of 36 months’ worth of rent. [8]
Clients wishing to make an application for damages for unlawful eviction should be referred to a specialist housing solicitor.
The rent cap
In some cases there is a rent increase cap in place, sometimes referred to as a rent freeze. The Cost of Living (Tenant Protection) (Scotland) Act 2022 sets a ‘permitted rate’ of increase to 0% for:
- private rented sector tenancies, until 31 March 2023
- common law tenancies in college or university halls and purpose built student accommodation, until 30 March 2023
Rent caps for social tenancies expired on 26 February 2023. [9] Social landlords have committed to keep rent increases below inflation.
From 1 April 2023 the ‘permitted rate’ of increase will change to 3% for private rented sector tenancies. Private landlords may only increase the rent by serving 3 months notice from this date. They can only do so as long as the rent has not been increased in the previous 12 months.
Student accommodation rent caps are being suspended on 30 March 2023. [10] Scottish Ministers may reimpose a cap if they assess a need for this.
If a client receives a valid increase notice after 6 September, or 28 October in student accommodation, and before the relevant 0% cap expiry date, it will be void. They will not have to pay the new increased rent. Exceptions apply to tenancies in the private rented sector.
Private rented sector exceptions to the cap
If a private landlord has incurred relevant costs in connection with the let tenancy in the 6 months prior to increasing the rent they may:
- issue a valid rent increase notice
- apply to Rent Service Scotland
- prove to a rent officer that the increase is as a result of incurred costs
Relevant incurred costs are limited to:
- mortgage or standard security interest
- an insurance premium (other than general building and contents insurance)
- service charges paid for by the landlord but the payment of which the tenant is responsible for under the tenancy
Before 31 March 2023, if the rent officer agrees to the increase, it will be set at the lower of:
- 3% higher than the existing rent, or
- 50% of the incurred costs
From 1 April 2023, if the rent officer agrees to the increase, it will be set at the lower of:
- 6% higher than the existing rent, or
- 50% of the incurred costs
If either the tenant or landlord are aggrieved by the rent officer’s decision, they may appeal it by applying to the First-tier Tribunal for Scotland (Housing and Property Chamber). [11]
Tenancies not affected
The rent increase cap does not apply to all tenancies. Rents can still be increased as normal in:
- statutory assured tenancies where the landlord varied the terms of the contract in the year following the conversion of the assured tenancy to a statutory assured tenancy under section 17 of the 1988 Act
- contractual assured tenancies which include a term making provision for an increase in rent (including provision whereby the rent for a particular period will or may be greater than that for an earlier period) [12]
- tenancies under the Rent (Scotland) Act 1984, such as a regulated tenancy
- common law tenancies, including where the tenant lives with their landlord
- agricultural tenancies
Last updated: 27 February 2023
