This content applies to Scotland only.
Housing laws vary between Scotland and England. Get advice relating to England
If your case is in the sheriff court, it may go through several stages before the sheriff makes a decision. At the end of a detailed hearing or 'proof' of your case, the sheriff has several options. This page tells you what decisions the sheriff can make, what effect they can have on you and whether or not you can appeal.
Will my case be in the sheriff court?
If your case is about housing, it's most likely to be dealt with the in the sheriff court - download our handy flowchart to see how sheriff courts fit into the court system in Scotland. This page gives you an idea of the decisions that are most likely to be taken in a sheriff court case either under small claims, summary cause or ordinary cause procedure.
Whatever stage your case is at, you're bound to come across lots of legal words and phrases that are complicated and confusing. Our page on legal jargon can help you to work out what the key terms mean.
How will I know what's been decided?
The sheriff will normally announce their decision once both you and your opponent have had a chance to have your say and all the evidence and any witnesses have been put before the court.
The decision can be announced quickly and, if you're not used to dealing with court procedure, it's easy to miss what's been decided or to misunderstand what's happening. That can be very stressful and frustrating. However, you can ask the sheriff clerk to tell you what the decision is afterwards.
If a solicitor is representing you in court, they'll either tell you what's happened after they've finished in court (they may have other cases to deal with first) or they'll write a letter to you telling you what happened and how it will affect you.
If the sheriff has decided that you should be evicted, your solicitor or representative should tell you straight away and discuss any options you may have with you.
What decisions can the sheriff make?
This depends on what the case is about and what stage it's at. However, generally speaking, the sheriff can do one of the following things:
- decide in favour of your opponent (this is called 'granting decree' against you) and give them what they're asking for (for example, a court order allowing your landlord to evict you)
- grant a 'decree of absolvitor' (which means the defender has won the case)
- take some time to make their final decision about your case (this is called 'avizandum')
- continue the case to another date
- sist the case
- dismiss the case.
If you own your home and have a mortgage and your mortgage lender has taken court action to try and repossess and sell your home, there are several decisions that the sheriff can make. Read our page called what can the court decide? in the repossession section for more details.
When making a final decision about your case, the sheriff will also make a decision about expenses. The sheriff might continue the case until another day to consider the expenses to be awarded. If this happens, you'll have to go back to court on that date.
What happens if decree is granted against me?
What is a 'decree'?
'Decree' is just another word for 'court order'. If you've been taken to court, your opponent will be asking the court to make a decision that's in their favour but that's against you and this is called seeking decree against you. The summons you received from your opponent will tell you what they want.
In housing cases in the sheriff court, your opponent is most likely to be seeking decree:
- for your eviction
- for your eviction and repayment of rent that's overdue
- to repossess your home if you haven't been paying your mortgage.
What happens if I'm being evicted?
If your landlord has taken you to court to try and evict you and the sheriff decides to 'grant decree for recovery of possession' it means that your landlord can legally evict you. If a decree for your eviction is granted, it means that your landlord can legally tell you to move out of your home. This is obviously very serious and, if you haven't already, you must get some advice from a solicitor who specialises in housing law immediately.
Can I do anything to prevent the eviction?
You might be able to get the case reopened or you could appeal against the decision. However, this really depends on:
- when the decree for your eviction was granted, and
- whether or not your were represented.
The rest of this section explains more.
If decree was granted at a first calling or continuation of your case
If decree for your eviction is granted at a first calling or continuation (see below) you might be able to get your case reopened by applying for a 'minute for recall' but only if you weren't represented in court.
However, this is only an option in certain circumstances. Also, there are strict time limits and you'll have to act very quickly to have a chance of being successful.
If lodging a minute for recall is an option for you and it is done correctly and on time, it will mean that your landlord can't take any more steps to evict you until there has been another hearing and the sheriff has decided what to do.
You can find more information about minute for recall here, but you must get advice from a specialised solicitor immediately for help with your individual case.
It's important to understand that, even if you successfully lodge a minute for recall, that doesn't guarantee that you won't be evicted. You'll still have to prove to the sheriff that your landlord doesn't have legal grounds to evict you.
If decree was granted at the proof stage of your case
If your case reached the stage of a full hearing or proof and decree was granted at that stage, you won't be able to apply to have the case reopened, even if no one represented you in court at the hearing. Speak to a solicitor or adviser who knows about housing law as soon as possible if you're in this situation.
What if my landlord's already changed the locks?
If your landlord has changed the locks or kicked you out of your home without first getting a court order (or if they haven't followed the correct legal procedure to evict you properly) this could be an illegal eviction and you can do something about it.
What is a decree of absolvitor?
If you're the defender and the sheriff isn't convinced by the arguments put forward by your opponent, they can grant a 'decree of absolvitor' in your favour. This means that you've won your case and your opponent won't be able to take you to court about the same thing again.
What does 'avizandum' mean?
Sometimes, the sheriff will take some time to think about your case before making a final decision on your case. This is called making 'avizandum'. It usually happens after there's been a full hearing or 'proof' of your case, when all the evidence and arguments have been presented.
If the sheriff makes avizandum, they'll issue their full decision or judgement (including all their reasons) in writing at a later date - usually 28 days after the hearing or proof has finished. If this happens, you'll just have to wait for the result. Your solicitor (if you have one) will let you know what the result is as soon as possible.
What's a continuation?
In some situations the sheriff will postpone making a final decision in a case until a later date. This is known as a continuation.
The sheriff can continue your case for several reasons including:
- to give you a chance to show that you can and will pay back your rent arrears as agreed
- to give one side time to get a report from a specialist (for example, if you've been suffering from depression, you might need more time to get a written report from your doctor)
- if they think it's necessary to do so for any other reason.
Cases can be continued for as long as necessary. Unlike a 'sist' (see below), your case will still be on the court agenda (or 'rolls') - it's just been temporarily postponed. If your case is continued, it means that it's still open and no final decision has been made. The sheriff clerk will set another date on which you'll have to go back to court. You'll also be told what the sheriff will expect to see or hear by then. For example, you might have to produce receipts to prove that you've been paying your rent arrears back as agreed.
You must put the date for the continued hearing in your diary and make sure that you or your representative is there. If no one appears in court on your behalf at the continued hearing the sheriff won't be impressed and they might even decide in favour of your opponent. As a worst case scenario, this could be a decision to evict you!
What's a sist?
The sheriff might decide to pause your case for a while to see what happens. This is called 'sisting' the case. Either you or your opponent can apply to sist the case if appropriate. You should get legal advice before you do this. The sheriff doesn't have to agree that your case will be sisted and will only do so if they think there's a good reason for it. You can't use it as a delaying tactic.
If your case is sisted, the sheriff has not made a final decision on your case but, unlike a 'continuation' (see above), it will come off the court agenda (or 'court rolls') for a while. Sisting a case means that the court procedure has been paused or 'put to sleep' for a while. To 'wake the case up' again, either you or your opponent has to ask the court to put the case back on the court agenda by 'enrolling a motion' to 'recall' or reverse the sist. If your case is being dealt with by summary cause procedure (see 'will my case be in the sheriff court?' above), the motion will be called an 'incidental application'. There's no charge for doing this. Your solicitor (if you have one) will be able to do this on your behalf. They will also be able to explain more about the procedure. If you're representing yourself, contact the sheriff clerk's office in the court.
The sheriff can sist your case for a variety of reasons but the most common reasons include:
- so that you or your opponent can apply for legal aid
- to give you a chance to negotiate with your opponent if you both think you can reach mutual agreement
- if you've got rent arrears and you've reached agreement about paying them back but it'll take a long time
- to give you a chance to show that you've changed your behaviour if that's an issue (for example, if there've been problems with antisocial behaviour)
- to show that a change in your circumstances has improved your situation (for example, that you're benefiting from additional support if you need it).
The sheriff can 'recall' or reverse the sist once both you and your opponent have had a chance to have their say. The sheriff will then make a final decision on your case (such as whether to grant decree or not - see above).
Dismissing the case
The sheriff can also decide to kick the case out of court in certain circumstances. This is called 'dismissing' the case. If this happens, the case is over and there are no winners or losers.
The sheriff can dismiss the case for various reasons including:
- if there aren't any competent legal arguments
- if the court doesn't have authority to deal with the case
- if neither side turns up for the court hearing.
So, if you're the one raising the court action, you have to make sure that there a proper legal basis for your case, otherwise it could be dismissed. That's why it's important to make sure you know what you're doing, or get advice from a solicitor before you go down this route.
If the case is dismissed, that's the end of the matter. It can't be brought back to court.
Where can I get further help and advice?
Our Advice Services Directory can direct you to an agency that can help.
If you want more advice on the legal aspects of your case and what decision the sheriff is likely to make, you'll have to speak to a solicitor who knows about housing law. You might be able to get help from a law centre.
What if I still don't understand what's happened?
If your case has already been to court but you're still not sure what's happening or what effect the decision will have on you, don't worry. Court procedure can be very confusing and it doesn't mean you're stupid if you don't understand everything. The best thing to do would be to contact the sheriff clerk in the court that dealt with your case. You can find contact details for all the sheriff courts in Scotland by visiting the Scottish Court Service website. The sheriff clerk won't be able to give you legal advice but they will be able to tell you the outcome of your case and explain any rules or court procedures that you have to follow.
If you have a solicitor, they will be able to explain things to you.