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Taking it to court

Taking it to court

Contents

Agreed termination date procedure (section 33 notice)

If your tenants have not moved out of the property at the end of the period specified in the Notice under section 33 of the Housing (Scotland) Act 1988, then you may apply to the court for an order evicting the tenants. If you have not yet served notice on the tenants, you are advised to read our article (Serving notice) on this topic before proceeding.

Locating the correct court

You can locate the Sheriff Courts in your area by using the Scottish courts website.

How do I start court proceedings?

You will need to send the following to the court:

1. Summary Cause Summons Form 1 (Action for Recovery of Possession of Heritable Property) and service copy Form 1a, duly completed. A separate Form 1a will be needed for each of the tenants in the property. The Sheriff Clerk at the Court will check and help you with the details required. You can include a claim for payment of rent arrears provided the arrears do not exceed £5,000.00.

2. The tenancy agreement. If there has been more than one tenancy agreement with the same tenants at the same property, then copies of the first tenancy agreement, as well as the latest tenancy agreement, should be sent.

3. A copy of the section 33 notice and evidence of its service upon the tenants (such as a receipted recorded delivery slip or Certificate of Service of Sheriff Officers).

4. A cheque for the court fee. Details of the court fee can be obtained on the Scottish courts website.

What happens after I issue court proceedings?

1. On receiving the summons, the court will:

i. Give it a reference number

ii. Insert the dates of the 'Return Day' and the 'Calling Date'.

iii. Send Form 1a to the tenant/s

iv. Advise you that this has been done and inform you of the date of service on the tenant/s

2. The tenants will have until the date of the 'Return Day' to send their defence (if any) to the court, stating why they oppose an order for possession of the property being granted in your favour. The court will provide you with a copy of the defence.

3. You are required to be either personally present or represented by a solicitor in court on the date of the 'Calling Date'.

Potential outcomes

If there is no defence stated by any tenant, you can ask the Sheriff to make an order allowing possession of the property to be recovered. You can also ask the Sheriff to make an order for payment of any rent arrears and for payment of interest and recoverable costs. The Sheriff will generally grant the order if all notices have been properly served and evidence to that effect has been provided. If granted, the order will be available for enforcement around 14 days thereafter and will be sent to you by the clerk.

If a defence has been stated, the Sheriff will schedule a date for a proof to take place. A proof is a hearing at which the Sheriff considers the evidence of witnesses and any documents presented, following which he makes a decision as to whether an order should be granted. There are strict rules governing the attendance of witnesses and the lodging of documents that require to be complied with. The Clerk of the Court will be able to give you detailed help if required.

What happens if the tenants ignore the court order?

You must not evict the tenants yourself.

If you have obtained an order for recovery of possession of the property and if the tenants do not vacate voluntarily, then you are required to instruct Sheriff Officers to arrange an eviction. The Sheriff Officers will need to have the court order from you and will intimate to the tenants a date upon which an eviction will take place. On that date, the Sheriff Officers will attend with a locksmith and will change the locks. You do not need to attend.

Please note that if the tenant refuses to leave after a court order has been granted for his or her eviction, and if you ask him or her to pay rent, there is a danger that the court could rule that a new tenancy has arisen. However, the tenant is liable to pay you damages for continued occupation of the property (known as violent profits). You should seek legal advice in these circumstances.

Using the rent arrears procedure (section 19 notice)

If your tenants fail to pay the outstanding rent and if the tenants have not moved out of the property at the end of the period specified in the Notice to Quit and Notice of Intention to raise Proceedings under section 19 of the Housing (Scotland) Act 1988, then you may apply to the court for an order evicting the tenants. If you have not yet served notices on the tenants, you are advised to read our article on this topic before proceeding.

How do I start court proceedings?

To start court proceedings, you should apply to the Sheriff Court in the same area where the property is situated. You can locate the Sheriff Courts in your area by using the Scottish courts website.

You will need to send the following forms to the court:

1. Summary Cause Summons Form 1 (Action for Recovery of Possession of Heritable Property) and service copy Form 1a duly completed. A separate Form 1a will be needed for each of the tenants in the property. The Sheriff Clerk at the Court will check and help you with the details required. You can include a claim for payment of rent arrears provided the arrears do not exceed £5,000.00.

2. The tenancy agreement. If there has been more than one tenancy agreement with the same tenants at the same property then copies of the first tenancy agreement, as well as the latest tenancy agreement should be sent.

3. A copy of the Notice to Quit and Notice of Intention to raise Proceedings under section 19 of the Housing (Scotland) Act 1988 and evidence of service upon the tenants (such as a receipted recorded delivery slip or Certificate of Service of Sheriff Officers).

4. A schedule of rent arrears setting out the dates and amounts of all payments due and made under the tenancy agreement and a running total of arrears due.

5. A cheque for the court fee. Details of the court fee can be obtained from the Scottish courts website. The cheque should be made payable to 'Scottish Court Service'.

What happens after I issue court proceedings?

1. On receiving the summons, the court will:

i. Give it a reference number.

ii. Insert the dates of the 'Return Day' and the 'Calling Date'.

iii. Send Forms 1a to the tenant/s.

iv. Advise you that this has been done and inform you of the date of service on the tenants.

2. The tenants will have until the date of the 'Return Day' to send their defence (if any) to the court stating why they oppose an order for possession of the property being granted in your favour. The court will provide you with a copy of the defence.

3. You are required to be either personally present or represented by a solicitor in court on the date of the 'Calling Date'.

What decision will the court make?

What decision the court will make will depend largely on whether you are relying on mandatory or discretionary grounds for possession:

  • If relying on mandatory grounds for possession, the court must make an order for possession of the property which means that the tenants must leave the property.
  • If you are relying upon discretionary grounds, the court may make an order for possession of the property. However, the court may also decide to allow the tenant to remain in the property, provided that they meet certain conditions, such as paying the rent by instalments. The case would then be continued to allow payments to be monitored.

Mandatory grounds for possession

To qualify for a mandatory possession order, at least 3 months' rent lawfully due by the tenant must be in arrears, both at the date of the service of the Notice of Intention to raise Proceedings under section 19 of the Housing (Scotland) Act 1988 and at the date of the court hearing.

If you do not satisfy the above criteria by the court hearing date then you may rely on the discretionary grounds for possession.

Discretionary grounds for possession

You may rely upon discretionary grounds for possession if one of the following criteria is fulfilled:

  • Some rent lawfully due has not been paid both by the time the possession proceedings have started and when the Notice of Intention to raise Proceedings under section 19 of the Housing (Scotland) Act 1988 was served. Note: If the tenant has been offering you rent, and you have refused to take it, the tenant will have a defence to your claim for possession, but he/she must still pay the amount owed.
  • Even if there are no current rent arrears, the tenant has persistently failed to pay rent on time.

When relying on discretionary grounds to obtain a possession order, you will need to satisfy the court that the criteria for the grounds have been met and that it is reasonable in the circumstances for the court to make an order for possession. This can be difficult to persuade the court. Therefore, there is no guarantee that you will obtain possession of your property when relying on the discretionary grounds for possession.

The court can take into account a large range of factors including:

  • The frequency of the late payments. If just 1 or 2 payments have been delayed over a long period of time then the court may not regard this to be 'persistent'. However, if the rent is habitually paid late then the court may take a different view.
  • The length of the delay in payments (a delay in payment over a period of years is more likely to result in an order for possession)
  • If it has been caused by factors outside the tenant's control (such as delays caused by housing benefit authorities)
  • Whether the tenant can provide a good explanation for the delay or non-payment of rent (such as showing it is exceptional, or if there has been a change in their personal circumstances, such as being made redundant)
  • What steps you have taken to secure payment of the arrears
  • If the delay has caused you any inconvenience and expense

What happens if the tenant ignores the court order?

You must not evict the tenant yourself under any circumstances.

If you have obtained an order for recovery of possession of the property and if the tenants do not vacate voluntarily, then you are required to instruct Sheriff Officers to arrange an eviction. The Sheriff Officers will need to have the court order from you and will intimate to the tenants a date upon which an eviction will take place. On that date, the Sheriff Officers will attend with a locksmith and will change the locks. You do not need to attend.

Please note that if the tenant refuses to leave after a court order has been granted for his or her eviction, and if you ask him or her to pay rent, there is a danger that the court could rule that a new tenancy has arisen. However, the tenant is liable to pay you damages for continued occupation of the property (known as violent profits). You should seek legal advice in these circumstances.