After decree remedies

There may be action that a tenant can take even if a decree has been granted against her/him.

This content applies to Scotland

How long does landlord have to use decree?

The general 'prescription period of 20 years' applies for all decrees for recovery of possession. [1] This means the landlord has 20 years to use the decree or order for eviction, unless there is specific legislation which states otherwise. The notable example of this is where a decree has been granted against a Scottish secure tenant for rent arrears - see below. 

Scottish secure tenants - rent arrears

A decree for eviction from a Scottish Secure tenant gained on the basis of rent arrears, is only valid for six months from date of extract. [2]

This means that it may be worth trying to negotiate with the landlord to postpone enforcement of the decree. For example, if a decree for eviction was granted due to rent arrears, but the tenant is able to repay the arrears in full within six months, the landlord may agree to hold off enforcing the decree to allow the arrears to be cleared. If the arrears are not repaid within the six months the landlord will still have the option to enforce the eviction.

This suggestion can be particularly useful where the landlord is a local authority who may ultimately have duties under the homeless legislation if decree is enforced. Many registered social landlords will prefer not to evict if it means they can recover their arrears.

It is important to note however that once decree is granted it can be used even if the rent arrears are paid in full. For a tenant facing eviction however this risk may be weighed up against the certainty of eviction if they take no action to repay the arrears.  

In addition, consider whether a new tenancy may have been created. In Scottish secure tenancy, where a decree for for recovery of possession is granted the tenancy is terminated [3] This means that the former tenant has no liability to pay rent after decree is granted.  If the decree is not enforced and rent is accepted by the landlord after decree is granted, it may be arguable that a new tenancy has been created. 

Scottish secure tenants - conduct reasons

Where a decree for eviction has been granted for conduct reasons, for example antisocial behaviour that occurred some time ago, or where there are mitigating circumstances, it can be worth asking the landlord to consider whether they would agree to carry out a 'technical eviction'.  

This is where the original tenancy is ended and the landlord then immediately grants a new Short Scottish Secure Tenancy at the same address. Again this can be a financially attractive solution where the landlord is the local authority who may have homelessness duties towards the tenant if they are evicted.  

Although this reduces the security of tenure in the short term there would be scope to convert the tenancy back to a full Scottish Secure Tenancy at a later date. A tenant in this position should be offered support to help enable them to do this. See the section on Short Scottish Secure tenancies for more information.

Private tenants - power to delay eviction

The First-tier Tribunal have the power to order a delay in execution of an eviction order. [4] The Tribunal has the power to do this at any time before the order is executed. The application should be made in writing to the tribunal quoting the case reference number and providing as much information as possible as to why this is necessary keeping in mind that the tribunal have an overriding objective 'to deal with the proceedings justly'. [5]

Minute for recall

Recalling the decree can be used where the tenant did not attend or have someone represent them at the hearing where decree was granted. It has the effect of preventing eviction to allow the tenant a further opportunity to state a defence. The procedure can be used in both court and tribunal actions but the rules and process are different in each case. Details can be found on the page Minute for recall.

Right of appeal

There is a right of appeal against a final decree or eviction order granted by either sheriff court or tribunal, whether the defender was represented or not. An appeal with respect to eviction proceedings at the sheriff court  must be lodged within 14 days and an appeal regarding a tribunal order for eviction must be lodged within 30 days. However as an appeal can only be made on a point of law advice from a solicitor should be sought.  

Reduction or suspension of decree

Seeking reduction or suspension may be appropriate where there are exceptional circumstances meaning that justice has not been done. This has to be done in the Court of Session.

The legal framework for the reduction of a decree was set out in the recent case of John Campbell v Glasgow Housing Association Limited: [6]

  • it is entirely up to the judge to decide whether reduction is granted;

  • the outcome of each case turns on its own facts and circumstances;

  • reduction is only granted in exceptional circumstances;

  • the bar is set higher where there has been a hearing before the decree was granted;

  • reduction should only be granted where it is necessary to ensure that justice is done;

  • where there is another remedy, or a remedy that has not been used, this does not act as a bar to a reduction action. [7]

In John Campbell v Glasgow Housing Association Ltd an action for reduction of a decree for possession failed where the judge failed to find 'exceptional circumstances'. The fact that the court had not been made aware of: the details and full extent of the tenant's mental health problems; and that the court could have taken the tenant's arrears directly from his housing benefit, were not sufficiently serious to be considered exceptional. The landlord did not have a duty to alert the court as to the tenant's mental health in the absence of clear medical evidence and the tenant's solicitors had ample time to focus on the benefits issue before decree was granted.

Enforcement - eviction ban

The Scottish Government has brought in emergency regulations to temporarily prevent enforcement of evictions during the Coronavirus COVID-19 outbreak. [8]

  • the ban covers both social rented and private rented sector tenancies (from 23 January it also includes mortgage repossessions)

  • the ban will continue in Level 3 and 4 areas until 30 September 2021

  • it is a ban on enforcement action - sheriff officers cannot attend a property to serve a Charge for Removal or carry out an eviction or a mortgage repossession during period where the ban applies unless the eviction was granted due to criminal or antisocial behaviour.

The temporary regulations are subject to review every 21 days

For full details see Eviction procedures.

Last updated: 25 March 2021

Footnotes

  • [1]

    s.8 Prescription and Limitation (Scotland) Act 1973

  • [2]

    Scottish Secure Tenancies (Repossession Orders) (Maximum Period) Order 2012/128 (Scottish SI).  Note: when calculating the six months the period covered by the Christmas eviction ban does not count. Add six weeks to any calculation covering 11 December 2020 - 21 January 2021. para.3 Health Protection (Coronavirus) (Protection from Eviction) (Scotland) Regulations SSI 2020/425

  • [3]

    s.16(5) Housing (Scotland) Act 2001

  • [4]

    Rule 16A(d) The First-tier Tribunal for Scotland Housing and Property Chamber Rules of Procedure 2017

  • [5]

    reg. 2 The First-tier Tribunal for Scotland Housing and Property Chamber Rules of Procedure 2017

  • [6]

    John Campbell v Glasgow Housing Association Ltd [2011] CSOH 55

  • [7]

    Adair v Colville & Sons 1926 SC (HL) 51; Zannetos v Glenford Holdings Ltd 1982 SLT 453; Bain v McConnell Ltd 1991 SLT 691; Johnstone & Clark (Engineers) Ltd v Lockhart 1995 SLT 440; and Sullivan v Sullivan unreported 20 March 2003 as cited in John Campbell v Glasgow Housing Association Ltd [2011] CSOH 55

  • [8]

    Sch. 4 para.9A and Sch. 5 para.10A Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 as amended