Repossession action procedures

From 1 August 2012 when landlords wish to obtain a possession order against a tenant and one of the grounds that they are relying on is rent arrears, they must follow certain pre-action requirements before they can begin court proceedings. [1] This is to ensure that an action for possession is only used as an option of last resort in rent arrears cases.

The proceedings may be raised using the summary cause procedure. [2] Where the arrears are over £5,000 (the limit for summary cause actions) landlords have the option of applying to court using ordinary cause procedure in an action for both the arrears and eviction. Caselaw has held that to require landlords to raise two separate actions, one for the arrears using ordinary cause and one for the eviction using summary cause, would be unnecessarily complicated and costly for both parties. [3]

If the landlord is seeking possession using any of grounds 1 to 7 (the 'conduct' grounds) or on ground 15 (transfer of tenancy), the court has the ability to adjourn the proceedings. This can be for any period and with or without any conditions, including that arrears should be paid. [4]

In order to begin the process of regaining possession of the property landlords must comply with the statutory provisions and serve a notice of proceedings on the tenant. [5] The notice must also be served on any qualifying occupants (see below). The proceedings must be raised on or after the date specified in the notice [6] and the notice must still be in force at the time the proceedings are raised. [7] A notice will be in force for a maximum of six months from the date on which proceedings can commence. [8]

If it is a joint tenancy, then a notice of proceedings must be served on all tenants. The fact that there is different behaviour by a joint tenant may mean that they won't be evicted, [9] but this will depend on the individual circumstances.[10]

The notice of proceedings used must be one of the forms specified for use by the Scottish Ministers. [11] This notice must contain the ground on which the landlord is seeking to recover possession and the date on or after which possession proceedings can begin. [12]

The type of notice that the landlord must serve depends on what ground(s) they are relying on:

• if rent arrears is one of the grounds they must state in the notice how they have complied with all of the pre-action requirements, [13]

• if the case does not involve rent arrears there is no requirement to comply with the pre-action requirements. [14]

Both of these notices are available in the Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012.

The landlord cannot begin possession proceedings in the court until at least four weeks after the notice has been served. [15]

Proceedings begin with a summons, which is the name of the document that is lodged in court and served on the tenant. [16] The summons can only be served at the end of the period specified in the notice of proceedings. Generally, the case itself cannot be called in court until at least 21 days after the summons has been served. There is, however, provision to shorten this period. [17] As a result, the tenant will have a minimum of seven weeks from the date s/he is first notified that their landlord is intending to take court action against them and the earliest date a court case could be heard. 

The summons must contain information relating to who the parties are, where the subjects are (the property the landlord is seeking to repossess), and the grounds on which the landlord is seeking repossession. 

The tenant has to be given fair notice of the case against them. [18] This should be outlined in the statement of claim, which is the part of the summons where the landlord outlines the case. It is not sufficient for the summons to state the ground upon which the action is based; it must also contain the details. For example, if ground 1 (rent arrears) was the reason for raising the action, the landlord would have to state the period for which the rent has been unpaid and how much is due. If the basic requirements are not met, it can be argued that the summons should be dismissed as incompetent. 

Under summary and ordinary cause procedure there are different implications for a tenant depending on whether they appear in court or not and whether they are represented or unrepresented. For more information on this, please see the section on going to court. 

The landlord must make inquiries to establish, as far as is reasonably practicable, whether there are any other people living with the tenant who should also receive a notice of proceedings. This would include someone who occupied the property as their only home and who is: [19]

• a member of the person's family aged at least 16 

• someone who is lodging with the tenant with the landlord's consent.

• someone to whom the property, or part of it, has been assigned or sublet with the landlord's consent 

If the landlord fails to serve the notice on any qualifying occupier, this will make the action incompetent. 

If someone is a qualifying occupier then s/he can apply to the court to be a part of the proceedings being taken against the tenant. If s/he makes the application, the court must grant it and this will enable the impact of the possible repossession on them to be taken into account by the court. [20] This will not necessarily prevent the court granting an order for the recovery of possession. The qualifying occupier would use the summary cause additional defender procedure in order to obtain leave from the court to become a defender in the action. [21] Qualifying occupiers should use their right to enter the court proceedings before a court order has been granted against the tenant. This is because once a court order has been granted they will not be entitled to recall the decree, as the decree can only be recalled by a 'party' to the action, ie someone against whom the decree was granted. [22]

There will be a short delay between the eviction being granted and the actual eviction being carried out. See the section on Eviction procedures for more information.