Identifying type of court action

Most social rented eviction actions in Scotland are brought by way of the summary cause procedure. In the case of Scottish secure tenants it may be argued that any action for repossession must be brought by way of summary cause. [1]

If this argument is correct, it gives landlords some difficulties when the arrears are over £5,000, which is the maximum amount of a debt that can be pursued through summary cause. [2] In cases where arrears are over £5,000 and the landlord attempts to use the ordinary cause procedure to recover possession of the property, rented under a Scottish secure tenancy, as well as simply recovering the debt (a combined action), it could be argued that the action for recovery of possession is incompetent since the Housing (Scotland) Act 2001 appears only to allow such actions to be raised under the summary cause procedure. [3]

This area has not yet been clarified; if advisers encounter a scenario where the ordinary cause procedure has been used then they should refer to a specialist solicitor.

For more information on summary cause, please see the page on summary cause actions.

Ordinary cause actions are used for actions for more than £5,000 (for example, recovery of rent arrears over £5,000). They are also used for most other actions that involve a decision other than an award of money, for example, divorce, custody and so on.

The ordinary cause process is far more complex than summary cause or small claims. A client being pursued under the ordinary cause procedure will have been served with a document headed 'Initial Writ'. If approached by a tenant with an ordinary action, advisers should quickly refer the case on to a solicitor experienced in housing law.

From 1st December 2017 all eviction action in relation to private sector tenancies must be raised through the First Tier Tribunal. The functions of the sheriff court in relation to private sector tenancies is transferred to the tribunal who will have the power to issue orders for eviction and orders for recovery of rent arrears. See the pages on First Tier Tribunal Housing and Property Chamber for more information.

With local authorities and housing associations in particular, it can be worthwhile to attempt to negotiate a resolution before getting to court. It may be that the landlord has served a notice on a tenant to get them to acknowledge and address their rent arrears, or it may be that the tenant has personal circumstances likely to cause a social landlord to treat them more sympathetically. Whatever the landlord's intentions are, it is important that the adviser and the defender know what is wanted from negotiations before they begin. In many circumstances, the landlord will agree to request a continuation in court to monitor the repayments. In Scotland, the court cannot grant a suspended possession order in the case of Scottish secure tenants. A continuation is different to the English suspended possession order as the court has not yet made a decision as to whether to grant decree or not.

There are five important points to note about pre-court negotiations:

• There is no point in agreeing an unrealistic repayment schedule; it is important to make sure the tenant is offering what s/he can afford. A standard incomings/outgoings sheet can be useful here.

• Negotiating an agreement is not the same as completing the 'time to pay order'; these should not be completed.

• If the landlord agrees to seek continuation to monitor the repayments, this should be confirmed in writing. If there is no written confirmation, ensure the client is represented in court.

• Where a person is in receipt of benefits, it may be advisable to offer an amount of repayment similar to that which would be taken off through the rent arrears direct scheme. [4] Indeed, a landlord's failure to use the arrears direct scheme could be used to argue that it is not reasonable to evict the client. [5]

• If the person has some surplus income, they may be able to apply for a debt payment programme under the debt arrangement scheme. [6] During participation in the debt arrangement scheme, most kinds of enforcement action against the debtor, including sequestration, will be prohibited. [7]

A landlord can still recover possession of a tenancy, but it is a condition of taking part in a debt payment programme that rent is paid as it falls due. Any arrears of rent should have been included in the programme. The court should therefore always be told about any existing or pending debt payment programme.

Advisers will need to check whether or not a debt payment programme is already in place when dealing with people who have multiple debts. Such an arrangement may need to be varied if the client's circumstances have changed, or indeed to include any rent arrears that may have been overlooked.