In general terms, tenants
and residential occupiers
cannot 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
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 Shelters 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
You may be able to defend
an eviction against you on procedural
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.