The Eviction Ban – when and how it applies

In September last year as part of its measures to address the cost-of-living crisis, the Scottish Government introduced a temporary moratorium prohibiting the eviction of residential tenants. The initial moratorium was to last until 31 March 2023, but the Scottish Government has proposed extending it to 30 September this year and has the power to extend it again to last until 31 March 2024.

Contrary to what many believe, it is not a complete prohibition against evictions. There are certain situations in which the prohibition does not apply, such as with anti-social behaviour, where the tenant has abandoned the property, or where there are substantial rent arrears (6 months or more). If it doesn't apply, the moratorium won't have any impact on the eviction process.

For most other cases, the moratorium will apply. There is a misconception that a landlord should wait until the moratorium has expired before commencing the eviction process. However, the emergency legislation which introduced the moratorium does not prevent a landlord from taking action to evict a tenant. A landlord may serve a notice to leave, any further pre-action notices or correspondence that may be required or raise eviction proceedings with the First Tier Tribunal (Housing and Property) for Scotland and obtain an eviction order. The moratorium only prevents a landlord from enforcing an eviction order, once it has been obtained, until the earlier of either (a) the moratorium expiring, or (b) 6 months.

Therefore, in practice, in the case of a problematic tenant, it often makes sense to commence the eviction process as soon as possible (issue eviction notices and then raise an action for eviction in the Tribunal). It may be that the tenant will leave on expiry of the notices. If not, by the time an eviction order has been obtained, which could take some time if defended, the moratorium may no longer be in force. If it does remain in force, the order can be enforced, at the latest, six months after it is obtained (and indeed earlier if the moratorium has expired in the interim).

The alternative is to wait until the moratorium expires and then commence the process. Taking into account notices often taking 12 weeks to expire before a Tribunal action can be raised, and the Tribunal process itself taking several months, this will very likely just add delay to the point in which an eviction can be enforced.