Taking legal action in the civil court

If a landlord is not willing to stop the harassment or unlawful eviction then s/he can be forced to do so by means of an interdict. An interdict orders something not to be done, and so can order the landlord to stop the harassment. If the tenant wishes to re-enter her/his home then they could raise an action of specific implement, which orders something to be done. A tenant will need to have a solicitor experienced in civil court work to help him/her take action in the sheriff court.

An action of interdict would normally be raised in the local sheriff court as an Ordinary Action. An interim interdict should be sought where the matter is urgent, ie the tenant wishes the landlord to stop his/her harassing behaviour immediately.

Once the Initial Writ (the document by which an ordinary action is begun) has been drafted and lodged at the sheriff court, and the fee paid, it will be served on the landlord.

If interim orders are sought then the Writ can be placed in front of the sheriff within a couple of hours. The sheriff would then decide whether or not to grant the interim order. The sheriff would need to consider whether:

• the remedy is appropriate under the circumstances

• the request is sufficiently specific

• the balance of convenience comes down in favour of granting the interim remedy sought, ie whether more harm would be done if the order were not granted than if it were.

If the interim interdict is granted, a date will be fixed for a few days later for a hearing at which the defender (the landlord) can be heard. An interim interdict order becomes binding upon the defender whenever he knows its existence and contents.

Even if an interim interdict is granted and upheld at the hearing, the action will continue until such time as the case is resolved either in court or through a settlement. If the landlord fails to comply with an interdict, the tenant can raise an action of breach of interdict, which has quasi-criminal implications. The Rent (Scotland) Act 1984 and the Housing (Scotland) Act 1988 also continue to have an effect. For more information, please see the section on the law in Scotland.