4. SERVING A NOTICE
81. Once landlords have met all of the pre-action requirements they may begin action to recover possession of a property. The first step is for landlords to serve a notice on tenants and any qualifying occupiers that explains that they may raise proceedings for possession of the property and the grounds for doing so. The Notice Regulations introduced 2 forms - for cases where grounds do and do not include rent arrears. This guidance concerns the second of these forms (Schedule 2), which for ease is also included in Annex C.
Content of the Notice
82. The Notice Regulations prescribe the form of the notice that landlords must use and taken with section 14(4) of the 2001 Act (as amended by section 155 of the 2010 Act) these require landlords to specify on that notice:
- the ground(s) for recovery;
- the reasons why possession is being sought;
- the date from which recovery proceedings may be raised; and
- the steps taken by them which the landlord considers to constitute compliance with the pre-action requirements.
83. The form of the notice in cases where the grounds include rent arrears now contains a section which lists each of the pre-action requirements and landlords have to mark each one as complete and set out brief details of the steps they have taken which they consider gives compliance with the legal requirements.
84. Landlords should keep records of their communications with tenants in relation to rent arrears and their attempts to resolve them as a matter of course. The notice must now include brief details and dates of the steps taken by landlords, including:
- Section 14A(2) - what information on the tenancy agreement and the unpaid rent and other financial obligations of the tenancy the landlord has provided the tenant with;
- Section 14A(3) - what help and advice the landlord has offered the tenant on their eligibility for housing benefit and other types of financial assistance;
- Section 14A(4) - what information on sources of help and advice on managing debt the landlord has provided the tenant with;
- Section 14A(5) - the efforts the landlord has made to agree with the tenant a reasonable plan for future payments, including any amendments to the plan in light of the tenant's changing circumstances (see section 14A(6)(c));
- Section 14A(6)(a) - the information provided by the tenant on any application for housing benefit and brief details of the landlord's consideration of the tenant's housing benefit entitlement, including any enquiries made;
- Section 14A(6)(b) - the information the tenant has given on any other steps they are taking to resolve the arrears and brief details of the landlord's consideration of these steps;
- Section 14A(6)(c) - consideration of whether the tenant is keeping to an agreed plan; and
- Section 14A(7) - when the landlord advised the tenant to contact their local authority (where the landlord is not the local authority itself).
85. The purpose of the notice is:
- to inform tenants that landlords may raise proceedings in court to repossess the property (section (a) of the notice); and
- to provide information for tenants on what the landlord has done to meet each of the pre-action requirements (section (b) of the notice).
86. While landlords submit the notice to court as part of any court action, the purpose of the notice is not to provide the court with all of the details of the action landlords have taken. A court may choose to consider the notice in detail, but this is not its purpose. The main purpose of section (b) of the notice is to provide tenants with information on what landlords have done to meet each of the pre-action requirements. Where landlords decide to raise an action for possession the court may ask them to explain at a later stage, exactly how they have complied with the pre-action requirements (see paragraph 98 onwards).
87. A further benefit of the notice may be that it encourages further dialogue between the landlord and the tenant which avoids court action where possible. Information in the notice should then:
- be brief;
- relate to the most recent steps that landlords have taken;
- relate specifically to each pre-action requirement;
- be factual, for example include dates of meetings/correspondence by landlords and tenants; and
- record any lack of response or engagement by tenants.
88. The information in the notice must be as clear as possible for tenants. The guidance in paragraphs 35 and 36 around tenants who have support needs or who are vulnerable is particularly relevant and landlords should do what they can to be confident that tenants understand the position.
Who the notice is served on
89. Landlords must give a copy of the completed notice to any qualifying occupiers, this should include the completed section (b) of the notice setting out how landlords have met each of the pre-action requirements. While data protection legislation protects personal data, the rights of qualifying occupiers under section 14 of the Housing (Scotland) Act 2001 supersede these provisions. Qualifying occupiers need information about how landlords have met the pre-action requirements for possible legal proceedings to defend their legal rights.
90. Landlords can now adapt the "Guidance Notes" section of the notice to the specific circumstances of each case. This is so that the notice is as easy for the recipient to understand as possible. This means that the landlord should include only the appropriate text for either a tenant or a qualifying occupier. The only other adjustment landlords may need to make to the notes is the removal of a bullet point about ground 2 where landlords are not also relying upon that ground.
91. In response to the notice tenants may contact landlords to discuss any concerns. It is in both landlords' and tenants' interests to resolve any disputes about whether landlords have met the pre-action requirements. Landlords should respond to tenants' concerns as soon as possible. If tenants dispute compliance with one or more of the requirements then it is in landlords' interests to check that they have met all of the pre-action requirements. In the end only the court can decide points of evidence and reach a view as to whether landlords have met the pre-action requirements. Answering concerns when tenants raise them may avoid protracted court action at a later date.