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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 on this topic before proceeding.
You can locate the Sheriff Courts in your area by using the Scottish courts website.
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.
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'.
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.
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.
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.
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'.
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 the court will make will depend largely on whether you are relying on mandatory or discretionary 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.
You may rely upon discretionary grounds for possession if one of the following criteria is fulfilled:
The court can take into account a large range of factors including:
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.
