Eviction after repossession proceedings

Even though a lender has obtained decree for repossession they still need to apply to court to evict any occupiers from the repossessed property and notify the local authority of this by way of a section 11 notice.

This content applies to Scotland

Decree for ejection

It doesn’t matter how the lender goes about enforcing their remedies on default under a mortgage agreement, they still need to apply to court if they wish to force the borrower to leave the property so they can sell it with vacant possession. In order to eject borrowers from the property lenders must first serve an initial writ [1] using ordinary cause procedure in an action for ejection. The initial writ should include details of the loan and the arrears.

Form of charge for removing

To evict the borrower and any other occupier the lender must serve a Form of Charge for Removing on the occupiers of the property. For decrees for eviction granted after 4 April 2011 granted in favour of lenders sheriff officers will serve a Form of Charge for Removing [2] on the occupants of the property. This gives the occupants 14 days after the date on which they have been told to vacate the property for them. The 14 day period can be varied by the court if cause is shown, for example if there is evidence that the defender will cause criminal damage to the property within the two week period. [3]

If the defender does not remove her/his family and possessions by the last date allowed, Sheriff Officers will remove them and change the locks. Sheriff Officers have power to open shut and lockfast places and will proceed even if the borrower is absent when they call. [4] Removing should not take place on a Sunday, bank holiday or before 8 a.m. or after 8 p.m., however this can be altered where permission from the sheriff is granted. [5]

Where there is a potential risk to the property of the defender then the court can order the pursuer to preserve certain items. The court will grant such an order if it is persuaded that it is necessary to reduce the risk of damage to the defender’s possessions. It does not however affect the pursuer’s right to clear the property of the defender’s possessions. [6] It is important to note that the court can hold the defender liable for any costs that may be incurred by the pursuer in preserving particular items of the defender’s property. [7]

Last updated: 29 December 2014

Footnotes

  • [1]

    link

  • [2]

    s.216(1) Bankruptcy and Diligence etc. (Scotland) Act 2007; Removing from Heritable Property (Form of Charge) (Scotland) Regulations 2011  

  • [3]

    s.216(4) Bankruptcy and Diligence etc. (Scotland) Act 2007

  • [4]

    s.216(3) Bankruptcy and Diligence etc. (Scotland) Act 2007

  • [5]

    s.217 Bankruptcy and Diligence etc. (Scotland) Act 2007

  • [6]

    s.218 Bankruptcy and Diligence etc. (Scotland) Act 2007

  • [7]

    s.218(2) Bankruptcy and Diligence etc. (Scotland) Act 2007