After decree remedies

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. 

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. 

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.

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]

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.

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.  

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.