Section 2 orders

This content applies to Scotland only.

Housing laws vary between Scotland and England. This page applies to Scotland only. Get advice relating to England

In certain circumstances you may be able to ask the sheriff court to make an order preventing your lender from repossessing your home and giving you time to pay your arrears. If your home is to be repossessed, you can ask for an order allowing you time to find alternative accommodation before you have to leave.

What is a section 2 order?

A section 2 order is a court order which can either:

• stop your lender from repossessing and selling your home, giving you an opportunity to clear your arrears, or
• allow you time to find alternative accommodation before you have to move out, if your lender is permitted to repossess your property. The property cannot be sold whilst you are living in it.

The court can attach conditions to a section 2 order. For example, if you are being given the chance to clear your arrears, it may state that you must make monthly payments to clear your arrears and get debt advice from a money adviser. Alternatively, if you are being allowed time to find alternative accommodation, the section 2 order may state that you must make a homeless application to the council.

Who can apply for a section 2 order?

You can only apply for a section 2 order if you live in the property and it is your only or main home. Your circumstances will determine whether you can come to an arrangement to clear the arrears and remain in the property, or whether you should just ask for time to find alternative accommodation.

I am the owner

If you are the owner of the property, or the mortgage or loan is in your name, you can apply for a section 2 order allowing you to remain in the home and repay the arrears, or giving you time to find alternative accommodation before you have to move out.

I am the owner's spouse or civil partner

If you are married to or in a civil partnership with the person who took out the mortgage or loan, you can ask for a section 2 order to give you time to find alternative accommodation. If you are happy to take on the mortgage payments, you can ask for a section 2 order which allows you to continue to live in the property and make an arrangement to clear the arrears.

I am living with the owner

You can apply for a section 2 order if you are the current cohabitee of the owner or the borrower (this includes same sex partners). You can either ask for a section 2 order to allow you time to find alternative accommodation or, if you can demonstrate that you will be able to make payments towards the mortgage and the arrears, you can ask for the order to allow you to continue to live in the property.

I used to live with the owner

If you are the former cohabitee of the owner or borrower and they have moved out, you may be able to apply for a section 2 order (this includes same sex partners). You must:

• have lived together in the property for at least six months before your partner moved out
• have a child living in the house who is, or is treated as, the owner's or mortgage borrower's child.

You will not be allowed to take over the mortgage payments. You are most likely to be allowed time to find alternative accommodation before you have to move out. You can ask if the mortgage lender will allow you to continue to live in the property and pay them rent, but this is unlikely.

When should I apply?

There are different time limits depending on which notices you have received.

• You have two months to apply from the date that you are sent a notice of default or calling up notice.
• If you have received an initial writ and a section 24 notice, you can apply for a section 2 order at any time before a court order is issued.

How do I apply?

If you are applying for a section 2 order, you will need help from a solicitor. Use the Law Society of Scotland website to find a solicitor in your area, or speak to an adviser at a Citizens Advice Bureau, who may be able to recommend one to you.

Will I have to go to court?

Yes. If you apply for a section 2 order, your application will be heard at the sheriff court. If you go to court, you will be given the opportunity to explain why you think a section 2 order should be granted.

When will a section 2 order be granted?

The sheriff will decide if it is reasonable to grant the order, taking into account:

• the amount of mortgage arrears you have and how they arose
• your ability to make payments towards your arrears and how long it might take you to clear them
• any efforts you've made to keep paying the mortgage
• any action your lender has taken to negotiate a repayment arrangement with you
• how easy it would be for you and anyone living with you to find reasonable alternative accommodation.

Can a section 2 order be changed?

After a section 2 order has been granted, either you or your lender can apply to the court to have the conditions of the order changed. For example:

• your lender might ask to have the order withdrawn if you have not been making payments as agreed, or
• you might have a smaller income than when the order was made and ask to be allowed to make smaller payments over a longer period of time.

If your lender applies for the order to be revoked, you can apply for a new order to be made.