Tenants and partners' rights in repossession procedures
If you are worried that the home you are living in may be repossessed, but you are not the person who took out the mortgage, you may still be able to prevent or delay the repossession. What should happen and what your rights are as a tenant of or partner or spouse of the borrower.
How will I know if the property is going to be repossessed?
When a mortgage lender starts proceedings to repossess a home, it must send a copy of any legal notice that is being sent to the borrower to any other people living in the home. This will usually be addressed 'to the occupier'.
If you have received a notice addressed to the occupier, talk to an adviser immediately. You can get advice from Shelter Scotland's free housing advice helpline 0808 800 4444, Citizens Advice, your local council or other local advice centre. Use the Advice Services Directory to find agencies in your area.
What are my rights if I'm a tenant?
If you are a tenant of a landlord whose property is subject to a repossession order, it does not mean that you have to automatically leave the property. The landlord's lender would have to seek to evict you in the same way as a landlord has to. The section on eviction from private rented accommodation explains the eviction process and what you can do to delay or stop the eviction. You don't have to leave until the lender has got an order from the sheriff court to evict you. However, the repossession of the property is a 'mandatory ground' for eviction, which means that the sheriff has to grant an order for your eviction and can't use their discretion to allow you to stay on.
If you get a notice of an impending notice to remove, or the sheriff officers turn up at your door and request you leave the property, the best course of action would be to contact the lender and tell them that you are a tenant in the property. Hopefully this should stop the impending action. However, if the lender will not recognise you as a tenant, or states that you will have to leave regardless, contact an advice centre or a solicitor.
What are my rights if I'm the spouse, civil partner or partner of the person who took out the mortgage?
You may be able to prevent or delay repossession if you are:
- married to the borrower
- the borrower's civil partner
- the borrower's current cohabitee (including same-sex partners), or
- you were the borrower's cohabitee and you lived together for six months before the borrower moved out.
If you are married to the borrower, or are the borrower's civil partner or partner, you can go to court and put forward your case to stay in the home. Even if you are not mentioned on the paperwork you can go to court. The Sheriff should take into account your circumstances when deciding what to do. You may be able to take responsibility for paying the mortgage payments, although you are not obliged to do so.