Eviction procedures

This page explains the procedure that pursuers must follow to enforce a decree or order for eviction

Advisers should note there was a ban on enforcement action in Level 3 and 4 areas. Scotland moved out of the levels system on 9 August 2021, so the ban is no longer in force anywhere in the country.

This content applies to Scotland

Eviction procedures - overview

When a pursuer wishes to enforce a decree for removing a defender and their possessions from heritable property the correct procedure must be followed. [1]

These requirements apply to all tenancy evictions. [2]

There will be a delay between the eviction being granted at the court or tribunal and the actual eviction being carried out. There are appeal periods which must pass before the eviction decree or order can be issued. There are then notice requirements before sheriff officers can carry out the eviction process.

For actions raised at the sheriff court this means in general the minimum time period between the court hearing and the eviction happening will be 28 days. For actions at tribunal the minimum timescale would be 44 days.

However, in some circumstances the pursuer can request that the notice period be shortened. See the section on ‘charge for removal’ below.

Appeal periods

For actions calling at the Sheriff court there is a strict 14 day period where a defender can apply to appeal the decision. The decree cannot be ‘extracted’ until the expiry of this appeal period. [3]

For tribunal applications the appeal period is at least 30 days from the date of the decision. No order can be enforceable until the appeal period has passed. [4]

In either case an appeal can only be raised on a point of law. If considering whether there are grounds to appeal clients should be advised to consult a solicitor.

Charge for removal

To evict a defender a pursuer must serve a 'Form of Charge for Removing' by Sheriff Officers or Messengers-at-Arms. This will explain that the pursuer was successful in the action for possession at court and that the decree is now being enforced, meaning that the defender must move out of the property. This notice will usually give the defender 14 days notice to remove themselves and their belongings from the property. [5] The default 14 day period can be changed if the pursuer persuades the court this is necessary. [6] For example, there may be a risk that the tenant will cause damage to the property. It's important to check that a charge for removal has been served in all eviction cases, if a landlord does not serve a charge for removal and they proceed with an eviction action, it is arguable that the eviction is unlawful.

The 14 day notice period in a charge for removal does not affect a tenant's right to recall a decree for eviction granted against them up until the date of the actual removal itself. [7] If the eviction has not yet happened see the pages on Minute for recall

During the 'eviction ban' period sheriff officers must not attend any property in order to serve a Charge for Removal or execute a decree for eviction. See the section below on Enforcement -  eviction ban.

Termination of the notice period

Once the notice period is up Sheriff Officers have the power to force entry and fit new locks to gain possession of the property. If necessary, they also have the power to remove the defender and their possessions from the property. Where the defender's possessions are removed Sheriff Officers must make an inventory of these. [8]

The removal itself

The removal itself cannot take place on a Sunday, bank holiday, before 8 a.m. or after 8 p.m. However, this restriction can be lifted where permission is granted from the sheriff. [9] Once date for the removal is decided, Sheriff Officers must send Form 4 'Notice of the date of removal' to the defender not less than 48 hours before the date of the removal itself. The pursuer can apply to the sheriff court for this to be shorter where this is justifiable. [10]

When making an inventory of any of the defender's belongings Sheriff Officers must fill out Form 6 'Form of inventory of effects removed', this must be witnessed. [11]

Once the removal is complete Sheriff Officers must then fill out Form 7, 'Form of certificate of execution of decree' and serve it on the defender. This lets the defender know that the removal has taken place, when it took place and who carried out the removal. This should be witnessed and left on the door of the property, or in some other suitable place where it's likely to come to the attention of the defender. [12]

Potential risk to the defender’s property

Where the defender's possessions are at risk of damage the court can order the pursuer to make sure that certain items of the defender's property are kept safe. The court will grant such an order where the judge is persuaded that it is necessary to reduce the risk of damage to the defender’s possessions. For example, the defender's possessions may include fragile items of high value which require particular care and attention when moving them. Where such an order has been granted the pursuer’s right to clear the property of any of the defender’s possessions is not affected. [13] It is important to note that the court can hold the defender liable for any costs that may be incurred by the pursuer. [14]

Security for costs incurred by the pursuer

The court can order the defender to put up a security, or a ‘caution for a pecuniary claim’, as a guarantee for any costs that the pursuer incurs for which the defender is liable. [15] For example, a pursuer may have to pay for the storage of the defender’s possessions.

Enforcement ‘eviction ban’

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

  • the ban covered both social rented and private rented sector tenancies as well as mortgage repossessions

  • the ban applied in Level 3 and 4 areas

  • it was a ban on enforcement action - sheriff officers could not 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

Scotland moved out of the levels system on 9 August 2021, so the ban is no longer in force anywhere in the country.

Last updated: 6 August 2021

Footnotes

  • [1]

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

  • [2]

    s.214 Bankruptcy and Diligence etc. (Scotland) Act 2007

  • [3]

    rule 23.6 Act of Sederunt (Summary Cause Rules) 2002 

  • [4]

    appeal period is set as per, reg.2 Scottish Tribunals (Time Limits) Regulations 2016; order not enforceable till expiry of appeal period para.41(1)and(2) First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations SSI - 2017/328  (as inserted by reg.4(15) reg.4(15) First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Amendment Regulations 2018 SSI-2018/378)

  • [5]

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

  • [6]

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

  • [7]

    rule 24.1(9) Act of Sederunt (Summary Cause Rules) 2002 substituted by rule 16(2) Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2011/193 

  • [8]

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

  • [9]

    s.217(1)-(2) Bankruptcy and Diligence etc. (Scotland) Act 2007 

  • [10]

    reg. 4 Act of Sederunt, (Actions for removing from heritable property) 2012 

  • [11]

    reg. 6(2) and Form 6, Schedule, Act of Sederunt (Actions for removing from heritable property) 2012 

  • [12]

    reg. 7 and Form 7, Schedule, Act of Sederunt (Actions for removing from heritable property) 2012 

  • [13]

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

  • [14]

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

  • [15]

    s.219 Bankruptcy and Diligence etc. (Scotland) Act 2007