Reminder: timing of rent arrears notice

SAL members are reminded that following an Upper Tribunal case last year, they should wait until a Private Residential Tenancy (PRT) tenant has owed some rent for a period of three months before serving a Notice to Leave on the rent arrears ground.

The Upper Tribunal set an important but disappointing precedent in rejecting an appeal against a decision by the First-tier Tribunal (FTT). The FTT decision rejected an application for an eviction order on a PRT, stating that the Notice to Leave issued by the landlord’s agent was invalid because the rent arrears ground (which requires a tenant to have owed some rent for three months) didn’t apply at the point the notice was issued. Although the ground applied in full at the end of the notice period when the agent applied to the tribunal, the FTT took the view that this wasn’t sufficient.

Despite there being nothing in the PRT legislation requiring the ground to apply in full at the point notice is issued, and the Scottish Government reassuring SAL and parliament at the bill stage of the PRT legislation that notice can be served as soon as a tenant falls into arrears, the Upper Tribunal agreed with the FTT and upheld their decision. Download decision document, (members remember to log in to be able to download documents).

Following this ruling it is important that landlords/agents don’t issue notice for rent arrears on a PRT until the tenant has owed some rent for three months.

As a result of this decision, SAL is lobbying for a change in the PRT legislation as one of the intentions of the legislation was to allow a landlord to take action at an early stage when their tenant got into rent arrears. The Upper Tribunal decision means that the eviction process for rent arrears will now take a month longer than was intended when the legislation was agreed by parliament.

For help with serving notice members please contact the SAL advice line.

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