scots law
basic advice from govan law centre

eviction of tenants & residential occupiers










 

  • In general terms, ‘tenants’ and ‘residential occupierscannot be evicted from domestic dwellings without a court order. You are a 'residential occupier' if you occupy under a valid permission, right of contract or statute (for example, you are the spouse of the tenant - see s.22(5), Rent (Scotland) Act 1984). To evict brevi manu – that is without due process of law – may be a criminal offence in terms of section 22 of the Rent (Scotland) Act 1984; and may also give rise to a claim in damages at Scots common law and in terms of the Housing (Scotland) Act 1988. Special rules apply to some hostel residents, however, even in hostel cases it is generally not lawful to evict 'on-the-spot' (see the recent case of Conway -v- Glasgow City Council).

  • If your landlord has threatened to evict you summarily or has harassed you (for example, by cutting off your water or electricity supply etc.,) you can obtain urgent legal help from a law centre or other solicitor who practices in the field of housing law. You should contact the police – as such behaviour may constitute a criminal offence in terms of the 1984 Act.

  • Where a landlord wishes to evict you, he/she will generally have to raise an ‘action for recovery of heritable possession’ at the sheriff court. This action proceeds by way of a ‘summons’ and ‘statement of claim’. The normal court procedure that must be used is ‘summary cause procedure’ (an expedited form of civil court procedure).

  • Your landlord will have to formally ‘serve’ the summons and statement of claim on you – either by recorded delivery post or by personal service by sheriff officers. If you receive a summons, you should take this immediately to a local law centre or other solicitor who practices in housing law.

  • If you ignore the summons, and fail to attend at court, the court may grant decree against you. If you have received a letter from sheriff officers advising of a date and time for your ejection – it might still be possible to do something.

  • In many cases, it will be possible to ‘minute for recall of decree’, get your case back into court, and prevent the eviction taking place. However, you will require the immediate help of a local law centre, local firm of solicitors, or one of Shelter’s housing aid centres – call one of these agencies immediately and tell them you need urgent help (law centres, solicitors and housing aid centres are listed in your local telephone directory).

  • You may be able to defend an eviction against you on ‘procedural’ and/or ‘substantive’ grounds. Procedural defences relate to mistakes the landlord may have made in bringing the action to court (this can be a complex area of the law); substantive defences relate to your right to defend the case on ‘the merits’ – for example, if you think the sum due is incorrect; claim that the rent is not due because the landlord has failed in its obligations to you; believe that it is not reasonable to evict because you can repay, or are eligible for housing benefit etc., or would have nowhere to go if you lost your home etc.,

  • If any event, you can obtain free legal advice and representation from a law centre (who employ housing solicitors) or a housing aid centre. If you are on a low income, you may be able to get free help from a local firm of solicitors. It is always best to get help as soon as possible.