Scope: Scotland. Cited to Scottish instruments throughout. Rent arrears eviction on a Private Residential Tenancy runs on ground 12 of Schedule 3 to the Private Housing (Tenancies) (Scotland) Act 2016. Ground 8 of the English Housing Act 1988, and its two-month mandatory threshold, has no application here.
Our compliance check now covers Scotland, and so does the fine calculator. Enter a Scottish postcode and both answer in Scots law, cited to Scottish instruments — the check with your council’s registration and HMO position where we hold it, the calculator with the Scottish maximum for each offence and, where the consequence is not a fine, what it actually is. Still England and Wales only: the tenancy agreement checker, whose findings come from England and Wales statutes.
The ground
Ground 12(1): “It is an eviction ground that the tenant has been in rent arrears for three or more consecutive months.”
Three consecutive months is the threshold to reach the ground. It is not a threshold that produces an order. Ground 12(3) is explicit that the Tribunal may find the ground applies where the tenant has been in arrears for three or more consecutive months and the Tribunal “is satisfied that it is reasonable on account of that fact to issue an eviction order”.
Like every other ground in Schedule 3, this one is discretionary. Proving the arithmetic proves the ground. It does not prove the case.
The two things the Tribunal must consider
Ground 12(4) directs the Tribunal, in deciding reasonableness, to consider:
- Whether the arrears are wholly or partly a consequence of a delay or failure in the payment of a relevant benefit.
- The extent to which the landlord has complied with the pre-action protocol prescribed by the Scottish Ministers in regulations.
The second limb is the one landlords underestimate, and it is worth being precise about its status: it is not a pandemic measure that has lapsed. It was inserted on 1 October 2022 by the Coronavirus (Recovery and Reform) (Scotland) Act 2022 and it is permanent. The word “Coronavirus” in that Act’s title has misled a lot of people about what survived it.
What counts as a relevant benefit
Ground 12(5) defines it, and the list is closed:
- a rent allowance or rent rebate under the Housing Benefit (General) Regulations 1987;
- a payment on account under regulation 91 of those Regulations;
- universal credit, where the payment included or ought to have included an amount for rent under section 11 of the Welfare Reform Act 2012;
- sums payable under section 73 of the Education (Scotland) Act 1980.
There is one important limit. References to delay or failure do not include any delay or failure so far as it is referable to an act or omission of the tenant. A tenant who never made the claim, or who failed to respond to the DWP, is not sheltered by this limb. A tenant whose universal credit housing element was administratively delayed is.
What the protocol covers
Ground 12(6) sets out what the prescribed regulations may provide for, and it is a fair guide to what the Tribunal will be looking for:
- Information the landlord should give the tenant — about the terms of the tenancy, the arrears, and any other outstanding financial obligation under the tenancy.
- Steps the landlord should take to try to agree arrangements with the tenant for payment of future rent, the arrears, and any other outstanding obligation.
- Such other matters as the Scottish Ministers consider appropriate.
In practice this rewards a landlord who has a paper trail of engagement and punishes one who has none. A rent statement, a written explanation of what is owed, a proposed payment plan, and evidence of having signposted the tenant to advice are worth more at the hearing than a schedule of missed payments.
Ground 12A has expired, and commentary has not caught up
The Cost of Living (Tenant Protection) (Scotland) Act 2022 inserted a separate ground, 12A, “substantial rent arrears”, on 28 October 2022. It was temporary until the end of 31 March 2024 and it is gone.
This matters because 12A was the ground with a monetary trigger, and articles describing “six months’ rent” or a cash threshold as the Scottish arrears test are describing a ground that no longer exists. The live test is three consecutive months plus reasonableness, and nothing else.
The sequence
- Engage early and in writing. The protocol limb is assessed on what you did before the notice, not after it.
- Establish the three consecutive months. Consecutive is the operative word; arrears that clear and recur may not satisfy it.
- Check the benefit position. If the arrears track a universal credit problem, expect that to weigh heavily against an order.
- Serve a Notice to Leave naming ground 12. Naming the wrong ground is fatal to the application built on it.
- Apply to the First-tier Tribunal, and bring the engagement record, not just the ledger.
Two things that are not remedies
You cannot recover possession by any route other than a Tribunal order — there is no no-fault route to possession in Scots law at all, and taking possession yourself exposes you to a wrongful-termination order of up to six months’ rent.
And arrears do not suspend your own duties. The Repairing Standard is a continuing obligation regardless of whether the rent is being paid, and a tenant in arrears can still apply to the Tribunal about the condition of the property.
Information tool, not legal advice. Scottish law only.